NCA PROFESSIONAL RESPONSIBILITY

FEBRUARY 2023

PART 4 - ACCESS TO JUSTICE

 Questions to consider  
 What is meant by ‘access to justice’? 
 What are legal needs? 
 Is there a current access to justice crisis? What does that mean? 
 Who should be responsible for providing access to justice? What is the role of lawyers? The profession? 
 What are some concrete options for addressing issues of access to justice? 
 Legal fees, pro bono, paralegals. 
 Model Code, Preface 
  Rule 3.1 and Commentaries – Competent Lawyer   
 3.1-1 “Competent lawyer" definition  
o Competent lawyer” means a lawyer who has and applies relevant knowledge, skills and attributes in a
manner appropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer’s
engagement 
 3.1-2 “Competent lawyer" rule  
o client is entitled to assume that the lawyer has the ability and capacity to deal adequately with all legal
matters to be undertaken on the client’s behalf. 
o Comment 3: In deciding whether the lawyer has employed the requisite degree of knowledge and skill in a
particular matter, relevant factors will include: 
o Comment 5: A lawyer should not undertake a matter without honestly feeling competent to handle it, or
being able to become competent without undue delay 
o Comment 7: recognize that competence for a particular task may require seeking advice from or
collaborating with experts in scientific, accounting or other non-legal fields 
o Comment 8:  A lawyer should clearly specify the facts, circumstances and assumptions on which an
opinion is based, particularly when the circumstances do not justify an exhaustive investigation [...] 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. A lawyer should only express his or her legal opinion when
it is genuinely held and is provided to the standard of a competent lawyer. 
o Comment 9: A lawyer should be wary of providing unreasonable or over-confident assurances to the client,
especially when the lawyer’s employment or retainer may depend upon advising in a particular way. 
 Rule 3.6 - FEES AND DISBURSEMENTS 
 3.6-1 - Reasonable Fees and Disbursements - must not charge or accept a fee or disbursement, including
interest, unless it is fair and reasonable and has been disclosed in a timely fashion. 
o Comment 1: What is a fair and reasonable fee depends on such factors as: 
o Comment 2:  full disclosure in all financial dealings [...]. No fee, extra fees, reward, costs, commission,
interest, rebate, agency or forwarding allowance, or other compensation related to professional employment
may be taken by the lawyer from anyone other than the client without full disclosure [...].  
o Comment 3: provide to the client in writing, before or within a reasonable time after commencing a
representation, as much information regarding fees and disbursements, and interest 
o Comment 4: be ready to explain the basis of the fees and disbursement charged to the client 
 3.6-2 - Contingent Fees and Contingent Fee Agreements - lawyer may enter into a written agreement in
accordance with governing legislation that provides that the lawyer’s fee is contingent, in whole or in part, on
the outcome of the matter for which the lawyer’s services are to be provided. 
o Comment 1: In determining the appropriate percentage or other basis of a contingency fee, […]. The test is
whether the fee, in all of the circumstances, is fair and reasonable. 
o Comment 2: a lawyer is generally permitted to terminate the professional relationship with a client and
withdraw services if there is justifiable cause as set out in rule 3.7-1. If the retainer is pursuant to a
contingency agreement, the lawyer has impliedly undertaken the risk of not being paid in the event the suit
is unsuccessful. Accordingly, a lawyer cannot withdraw from representation for reasons other than those set
 out in rule 3.7-7 (Obligatory Withdrawal) unless the written contingency contract specifically states that the
lawyer has a right to do so and sets out the circumstances under which this may occur. 
 3.6-3 - Statement of Account - In a statement of an account, must clearly and separately detail the amounts
charged as fees and disbursements.  
o Comment 1: two main categories of charges on a statement of account are fees and disbursements 
o Comment 2: Party-and-party costs 
 3.6-4 - Joint Retainer - If acts for two or more clients in the same matter, must divide the fees and
disbursements equitably between them, unless there is an agreement by the clients otherwise. 
 3.6-5 - Division of Fees and Referral Fees - If there is consent from the client, fees for a matter may be divided
between lawyers who are not in the same firm, provided that the fees are divided in proportion to the work done
and the responsibilities assumed. 
 3.6-6 - Division of Fees and Referral Fees – if referral was not made because of a conflict of interest, the
referring lawyer may accept, and the other lawyer may pay, a referral fee, provided that: (a) the fee is
reasonable and does not increase the total amount of the fee charged to the client; and (b) the client is informed
and consents. 
 3.6-7 - Division of Fees and Referral Fees - must not: (a) directly or indirectly share, split, or divide his or her
fees with any person who is not a lawyer; or (b) give any financial or other reward for the referral of clients or
client matters to any person who is not a lawyer. 
o Comment 1: does not prevent a lawyer from engaging in promotional activities involving reasonable
expenditures on promotional items or activities that might result in the referral of clients generally by a
non-lawyer. 
 3.6-8 - Exception for Multi-discipline Practices and Interjurisdictional Law Firms - Rule 3.6-7 does not apply
to: (a) multi-discipline practices of lawyer and non-lawyer partners if the partnership agreement provides for the
sharing of fees, cash flows or profits among the members of the firm; and (b) sharing of fees, cash flows or
profits by lawyers who are members of an interjurisdictional law firm. 
o Comment 1: An affiliation is subject to rule 3.6-7. In particular, an affiliated entity is not permitted to share
in the lawyer’s revenues, cash flows or profits, either directly or indirectly through excessive inter-firm
charges, for example, by charging inter-firm expenses above their fair market value. 
 3.6-9 - Payment and Appropriation of Funds - If a lawyer and client agree that the lawyer will act only if the
lawyer’s retainer is paid in advance, confirm in written agreement and specify a payment date 
 3.6-10 - Payment and Appropriation of Funds - must not appropriate any client funds held in trust or otherwise
under the lawyer’s control for or on account of fees, except as permitted by the governing legislation. 
o Comment 2: Refusing to reimburse any portion of advance fees for work that has not been carried out when
the contract of professional services with the client has terminated is a breach of the obligation to act with
integrity. 
 3.6-11 - Payment and Appropriation of Funds - If the amount of fees or disbursements charged by a lawyer is
reduced on a review or assessment, the lawyer must repay the monies to the client as soon as is practicable 
 3.6-12 - Prepaid Legal Services Plan - A lawyer who accepts a client referred by a prepaid legal services plan
must advise the client in writing of: (a) the scope of work to be undertaken by the lawyer under the plan; and (b)
the extent to which a fee or disbursement will be payable by the client to the lawyer. 
 Rule 5.6-1 - Encouraging Respect for the Administration of Justice - A lawyer must encourage public respect for
and try to improve the administration of justice. 
 Comment 1: A lawyer should take care not to weaken or destroy public confidence in legal institutions or
authorities by irresponsible allegations. 
 Comment 2: constant efforts must be made to improve the administration of justice and thereby, to maintain
public respect for it. 
 Comment 3: lawyer should avoid criticism that is petty, intemperate or unsupported by a bona fide belief in its
real merit, since, in the eyes of the public, professional knowledge lends weight to the lawyer’s judgments or
criticism. Second, if a lawyer has been involved in the proceedings, there is the risk that any criticism may be,
or may appear to be, partisan rather than objective. Third, when a tribunal is the object of unjust criticism, a
lawyer, as a participant in the administration of justice, is uniquely able to, and should, support the tribunal,
both because its members cannot defend themselves and because, in doing so, the lawyer contributes to greater
public understanding of, and therefore respect for, the legal system. 
  Comment 4: lawyer should, therefore, lead in seeking improvements in the legal system, but any criticisms and
proposals should be bona fide and reasoned. 
 Rule 7.6 - Preventing Unauthorized Practice - A lawyer must assist in preventing the unauthorized practice of law.  
 Comment 1: for the protection of the public. the client of a lawyer who is authorized to practise has the
protection and benefit of the lawyer-client privilege, the lawyer’s duty of confidentiality, the professional
standard of care that the law requires of lawyers, and the authority that the courts exercise over them.  
Challenges for Lawyer Regulation: Ensuring Lawyers' Ethics (Chapter 10)  
o Considering the question of regulation itself - the challenges of creating effective mechanisms to encourage and
ensure ethical conduct by Canadian lawyers.  
o Law Society Mandates and Governance  
 Provincial law societies have inclusive jurisdiction to issue licenses permitting a person to practice law, to
set requirements for admission, to establish rules of practice and conduct, to investigate and adjudicate
complaints of misconduct, and to sanction lawyers found to have committed such misconduct.  
 all have an obligation to regulate in the public interest and have authority related to standards of admission
and conduct 
 In the common law provinces, legislation grants governance of Law Societies primarily to the societies'
member. we describe lawyers as self-regulated. the majority of the members of each law society's
governing body, Often known as benchers, are lawyers elected by other lawyers to serve in that role.  
 Alice Woolley 
 Can a regulatory system in which control rests with elected lawyers be trusted to regulate in the public
interests? 
 A lawyer voting in a bencher election, or running as a bencher, is likely to be influenced as much by
lawyer concerns as by those of the public interest. 
 Human beings are always influenced by our own interests  
 members of the public do care about effective loyal regulation, and the issues of concern to them ought
to be the focus when electing the benchers charged with protecting the public interest 
o Regulation of Admissions 
 A traditional emphasis in regulating the legal profession has been on "inputs" - on determining whether
applicants For Law Society admission are suitably qualified for the practice of law 
 The authority of the law societies to determine the competence requirements for admission is established
(and constrained) by legislation 
 some provincial statutes grant the law society explicit authority to regulate legal education 
 The good character requirement  
 Requires applicants to demonstrate an absence of conduct thought to indicate bad character such as
prior criminal convictions, academic dishonesty or attempting to deceive the Law Society; then if such
behavior has occurred, it requires those applicants to demonstrate repentance and rehabilitation.
applicants must have recovered from the conduct which gives rise to a negative inference about their
character. 
 the stated purpose are to protect the public, maintain high ethical standards and maintain public
confidence in the legal profession 
o first, that we can identify the conduct that indicates bad character 
o Second, that character determines conduct, such that an applicant of bad character who becomes a
lawyer is more likely to act unethically and more likely to pose a risk to an unsuspecting public 
 Preyra v. Law Society of Upper Canada 
o Facts 
 completed the bar admission course and his articles 
 in his attempt to find an articling job, the applicant intentionally falsified his law school
Marks and other academic credentials 
 even after his misrepresentations were exposed, the applicant continued to misrepresent what
had happened 
 a doctor treated the applicant. the doctor believes that the applicant's behavioral patterns of
misrepresentation and deception, which lasted for at least four years, have now been treated in
the 6th sessions. the applicant has had some very good things happen to him in the last few
years 
  both articling principals gave evidence on the applicant's behalf. the applicant was still
working for one of them at the time of the hearing 
o Issue   
 whether the applicant is of good character; and should now be admitted to the bar  
 whether the applicant has changed since November 1998 and is now of good character 
 whether the applicant has established his good character at the time of the hearing on a
balance of probabilities. the issue is his character today not the risk of his reoffending 
o Rule  
o Decision: The applicant has not satisfied the onus of proof on the balance of probability that he is
now of good character 
o Reasoning  
 all of the applicants behavior dealt directly with honesty and integrity. integrity is
fundamental to the competence of a lawyer 
 the purpose of the goods character requirement is to ensure that the law of society can protect
the public and maintain high ethical standards in the lawyers it admits. any decision must
serve to protect the public and maintain high public confidence in the law societies self-
governance 
 it is on the applicant to prove that he is of good character. the standard of proof is the balance
of probabilities. 
 competence does not prove good character. both articling principals admitted that they learned
of some of the details of the applicant's behaviour for the first time at the hearing.  
 the medical evidence was detailed, complicated, extremely technical, often contradictory, and
in some respects inconclusive.  
 the applicant asserts that he has been in the process of changing since 1994. central to the task
of the admissions panel is to determine whether that process is concluded.  
 the applicant engaged in this duplicitous behavior over a long.. He failed to be entirely honest
about it for four years. it was not a single lapse of judgment resulting from a stressful
situation. as recently as one year before the hearing the applicant was still misrepresenting.
the transition from being a person not of good character to one of good character is a process
not an event.  
 Law Society of Upper Canada v. Burgess 
o Facts  
 found to have committed plagiarism in regard to an essay she handed in during her 4th year 
 in her letter to the Law Society, dated November 11, 2003, Burgess gave a false account. on
January 4th 2005 provided a 2 1/2 page letter to the Law Society that she had given to her two
personal character references and to her two professional references 
 on April 21st 2005 the Law Society investigator telephoned her to enquire about the apparent
discrepancy between the explanation and the discipline case report that had been received
from the university. It is at this moment that she acknowledged the correct facts. 
 by e-mail dated August 12th 2005 one of her professors acknowledged receipt of the letter
from her and indicated that he had no intention of amending the character reference that he
provided 
 Her letter to her professors acknowledged a plagiarism incident but did not reveal that she had
lied to the Law Society about the nature of that plagiarism incident 
 she withdrew her name from higher back of the law firm. she also took six counseling session
for which the counseling notes there were quite minimal and of little to no assistance.  
 there was evidence of many varied positive things that she had done in the community,
including volunteering work, coaching soccer, assisting other students, etc. 
o Issue  
 whether the applicant is of good character and should now be admitted to the bar.  
 whether or not, on a balance of probabilities, she has established that she is of good character
today.  
o Rule  
o Reasoning 
 she was not of good character up until August 25th 2005 
  there was no psychiatric or psychological evidence 
 there was no sufficient passage of time for us to be able to conclude that she has established to
be a person of good character and suitable for admission 
 given the serious nature of the deception it would have been helpful if there was some
psychiatric or psychological evidence concerning the behavior that she engaged in up until 17
months ago 
 Naomi Sayers (The trauma of proving my good character) 
o I felt guilty putting my family through what I was experiencing. the questions ask about past
convictions. positive answers require supporting or relevant documentations. 
o in 2017 received a call from an investigator nearly six months after applying. not until February
2018 was she able to find time to meet the investigator. she was scared to return to a time of her
life filled with violence and exploitation. 
o When she met with the investigator some of the questions related to suicide and drug alcohol
counseling. she had never been to such counseling. 
o For the first set of charges she received an absolute discharge. the second set of charges were
withdrawn 
 Education  
 The law societies have identified competencies that each Canadian law schools must ensure students
achieve in order for the school's degree to be an approved law degree 
 an issue confronted by the law societies relate to what power or responsibility it has in relation to non-
academic aspects of a law school seeking approval of its law degree 
 Law Society of British Columbia v. Trinity Western University 
o Facts Trinity western university seeks to open a law school that requires its students and faculty to
adhere to a religious based code of conduct prohibiting sexual intimacy that violates the
sacredness of marriage between a man and a woman.  
 the covenant requires the students to voluntarily abstain from a number of actions including
harassment, lying, cheating, plagiarism, and the use of possession of alcohol on campus.
sexual intimacy that violates the sacredness of marriage between a man and a woman is the
prohibition at the heart of the appeal. all student and faculty must sign and abide by the
covenant as a condition of attendance or employment. 
 a student's failure to comply with the covenant may result in disciplinary measures including
suspension or permanent expulsion  
 the law society denies the proposed law school with a mandatory covenant. 
o Issue  
 at issue is a decision of the Law Society of British Columbia not to recognize the proposed
law school.  
 weather the Law Society was entitled to consider factors apart from the academic
qualification and competence of individual graduates in making this decision to deny approval
of the law school 
o Rule  
o Reasoning  
 Benchers are required to consider the overarching objective of protecting the public interest in
determining the requirements for admission to the profession including whether to approve a
particular law school 
 the public interest is a broad concept in what it requires will depend on the particular context 
 the requirement that students signed the covenant as a condition of admission effectively
imposes inequitable barriers of entry to the school. which would effectively impose
inequitable barriers on entry to the profession and risk decreasing diversity within the bar. it
would harm the LGBTQ individuals and will therefore undermine the public interest in the
administration of justice. limiting access to membership in the legal profession on the basis of
personal characteristics unrelated to merit is inherently inimical to the integrity of the legal
profession 
 the loss of society was entitled to interpret the public interest in the administration of justice
as being furthered by promoting diversity in the legal profession. a diverse bar is more
responsive to the needs of the public it serves. a diverse bar is a more competent bar. 
 o Note: 
 On August 14 2018 following the Supreme Court of Canada's decision Trinity western
dropped its requirement that students are there to the community covenant forbidding sex
outside of heterosexual marriage; it also said, however, that it would not revive its proposal to
start a law school. 
o Practice Regulation  
 Law societies create standards for practice in the form of codes of conduct. they also receive an investigate
complaints about lawyers conduct. adjudicate the complaints through a hearing, and sanction lawyers who
are found to have engaged in unprofessional conduct.  
 Also regulate the mode and form of law practice. conduct audits and practice reviews of lawyers and law
firm to review compliance with these requirements. 
 focus of legal regulation Seeks to identify instances of lawyer misconduct. also focuses primarily on
individual lawyers rather than on the structure and form of legal practice 
 Unauthorized practice of Law 
 Provincial law societies have the power to police the unauthorized practice of law 
 This is the weather this regulation protects the public interest, particularly in relation to ensuring access
to justice and competence 
 Law Society of Upper Canada v. Boldt 
 Facts  
 Bolt Is not and has never been a member or licensed to practice law in Ontario 
 she carried on business as a paralegal and mediator 
 she has prepared separation agreements, provided legal advice for the separation agreement
and offer to institute and complete divorce proceedings 
 she submits that neither mediators nor mediation are regulated by the Law Society and that
therefore she has not violated the terms 
 Issue  
 has she violated the injunction 
 Whether her conduct constitutes the unauthorized practice of law is prohibited by the
injunction 
 Rule  
 Reasoning  
 the Law Society requires its members to carry professional liability insurance and it
administers and indemnity fund for victims of lawyers dishonest conduct 
 the law society operates a rigorous complaints and discipline process in which members of the
public participate; To ensure that lawyers who have the exclusive right to practice law also
have the heavy and costly burden of doing so in a manner that is in the public's interest 
 The documents here were prepared with the intention of affecting the legal rights and
obligation of the parties who signed them. mediators should not be seen as a low price
alternative to lawyers. Where individuals seek advice about creating documents that are
legally binding and enforceable and will have an impact on their rights and entitlements, they
are entitled to that advice only from lawyers who are regulated in the public's interest  
It is regrettable that she thought she could ignore the injunction simply by changing the title
of her document 
 Lameman v. Alberta 
 Facts Tooks barristers have offered to provide services on a Pro bono basis. All of the lawyers in
question are trained as barristers in England. None is a member of the Law Society. 
 Issue whether a non lawyer is practicing law is a question of degree 
 Decision:  the proposed participation of Tooks barristers beyond the supporting role conceded by
the Law Society and the defendants are prohibited 
 Reasoning  
 The proposed involvement of tooks barristers, including questioning of witnesses, preparation
of argument, and advocacy before the court, clearly encompasses matters in respect of which
law students receive training and which the public understands to form part of a litigators
stock and trade 
  it involves acts which If performed improperly might appropriately draw comment or sanction
from the Law Society 
 Note:  
 Non members may not be competent in their practice cannot be regulated by the Law Society
they may inflict costs on their client and the functioning of the administration of justice while
not meaningfully improving access to justice 
 Extra-professional misconduct  
 Law societies also assert jurisdiction over misconduct by lawyers outside of legal practice. The power
of the law societies to regulate for extra professional misconduct  Allows the law societies to discipline
a lawyer for any behavior which the Law Society identifies as conduct unbecoming; It is as varied as
public nudity. 
 Law society of Alberta v. Sychuk  
 Facts applicant applied for reinstatement as a member of the Law Society of Alberta. he was very
well known professor because of his reputation as an expert in oil and gas law and land titles
matters.  
 He was a heavy drinker. on November 10th 1985 he became inebriated and quarreled with his
wife. she locked the basement door and he subsequently blew the lock of the door with a
shotgun. he entered a plea of guilty to a charge of using a firearm without lawful excuse and
without reasonable precaution for the safety of other persons and received a conditional
discharge. one of the condition was to continue therapy for alcohol abuse 
 on December 31st 1987, because of his intoxication a conviction of manslaughter was
appropriate but he was convicted of second degree. a total of 22 stab wounds were inflicted
upon his wife. her left arm had been broken by a twisting motion requiring considerable force
coupled with blunt trauma. she was also struck with considerable force on the mouth and the
left eye.  
 he has embarked upon a long and difficult journey of rehabilitation. received a lot of
psychiatric and psychological treatment and counseling. has developed coping mechanism
and methods of monitoring which are designed to enable him to manage his anger and remain
sober. 
 Issue  
 Rule  
 Reasoning  
 rehabilitation cannot be the paramount factor at the expense of the standing of the legal
profession. 
 good character without a good reputation is insufficient. fundamental to the role of lawyers in
society and the administration of justice is the need to uphold the law. legal profession is self-
governing and independent from the state 
 an applicant for reinstatement is much different from an applicant for admission to the bar. the
applicant in addition to committing the most serious of crime has broken faith with his oath. 
 here the lawyer was convicted of a brutal crime one of the most serious one. the life sentence
imposed upon him reflects societies denunciation of the crime he committed. he was an
officer of the court sworn to uphold the law. the Law Society would be compromised or
undermined if it were to reinstate him. one of the main reasons he seeks reinstatement is to
improve his respectability in the community. implicit in that is that membership in the law
carries with it a badge of respect.  
 Sexual harassment 
 Rule 6.3 
 Elaine Graig & Jocelyn Downie  
 More than three dozen women came forward alleging that the former premier violated their sexual
integrity over the course of 40 years 
 Law societies permit but do not require their members to report known sexual misconduct by other
lawyers 
 No societies must change their rules to require lawyers to report other lawyers whom they have
reasonable grounds to believe he leave have engaged in sexual harassment or sexual assault 
  Lawyers who are the victims of another lawyer's sexual misconduct should not be required to
report. third party reporting should anonymize the name of the victim unless they request
otherwise. 
 Amy Salyzyn  
 For victims of sexual harassment, mandatory reporting may limit their ability to decide for
themselves how best to respond to instances of harassment, and instead force them into a possibly
invasive regulatory process. Lawyers already have the option to report other lawyers.  
 Mandatory reporting places on due burdens on vulnerable bystanders. Must exempt those who
experience sexual harassment from the mandatory reporting rule 
 One could graft on another exemption to the mandatory rule for lawyers who are contacted by
victims of sexual harassment for advice or support. such an exemption may give the victim more
options, but requires her to engage in an interpretive exercise: he's the person she's talking to
providing confidential guidance and support about ethical and professional concern? if another
lawyer in the firm -who is not approached for advice or guidance- Witnesses the behavior, this
lawyer would be required to report.  
 no one has suggested that bystanders could be exempted from reporting and it is hard to think of
how bystander exemption could be implemented without robbing a mandatory reporting rule of
meaningful effect 
 Is it possible to generally provide for anonymity? what about cases where the facts in the report
would easily reveal the identity of the victim? these reports will presumably lead to Law Society
investigation in which the victim would be contacted. as a general matter lawyers have a duty to
cooperate with Law Society inquiries and investigations.  
 Sexual harassment he's understood to encompass a broad range of behavior p618 
 Does mandatory reporting required by standers to be in a constant state of vigilance and
assessment? 
 Facts could be stripped out of reports but the result is requiring lawyers to respond to anonymous
and vague complaints about their behaviors 
 Alice Woolley p619 
 She discovered soon after joining the firm that one of the lawyer was willing to make the rogatory
comments about women 
 Lawyer's fee  
 must be fair and reasonable; Basis for charging those fees must be disclosed in a timely fashion. 
 Noel Semple 
 Regulators should be much more specific about what is and is not fair and reasonable 
 a fair and reasonable fee must be clearly comprehensible to the average client at the time the client
retains the lawyer. must be consonant with legal professionals fiduciary obligation to not take
advantage of superior knowledge to enrich themselves at clients expense 
 prohibiting by billing practices that are clearly unfair and unreasonable would improve the
trustworthiness of all legal professionals. it will also make legal services more affordable  
 a few ideas for putting regulatory meat on the bone of Fair and reasonable 
 billable hour rates should not change during a retainer 
 Referrals should be made with exclusive reference to the best interest of the client, and no
regard to the referral fee 
 disbursements charged to clients should never be a source of profit or another benefit for law
firms 
 Etc.  
 Family law practice 
 Family law raises unique ethical issues. the legal test governing many family law decision is the best
interests of the child. should the ethical duties of the lawyer have to take into account the child who is
not the lawyer's client? 
 Rule 5.1-1 
 another distinct feature is that the litigants often have to continue to deal with each other after the
litigation concludes 
 Law Society of British Columbia (Best practice guidelines for lawyers practicing family law) p626 
  lawyers should strive to remain objective at all times and not to over identify with clients or be
unduly influenced by the emotions of the moment 
 lawyers should avoid using inflammatory language in spoken or written communications and
should encourage clients to do likewise 
 lawyers should keep clients advised of, and encourage clients to consider, at all stages of the
dispute:  
 the risks and costs of any proposed actions or communications; 
 both short and long term consequences; 
 the consequences for any children involved; and  
 importance of court orders or agreements 
 Etc.  
 John-Paul Boyd 
 critical differences between non-family disputes and family disputes: 
 dispute affects people other than the parties as the parties' children 
 issues involved are often and tangible and insusceptible to quantification. often concern
parenting capacity, employability, personality disorders and well-being 
 the conclusion of the trial does not signal the end of litigation 
 evidence at trial does not concern a closed event occurring in the past, but an ongoing series
of events 
 the object of the litigation is not an award of damages 
 the resolution of family law disputes rarely involves winning and losing and such should not be
the goal of counsel 
 New code for family law matters p628 
 Alex council to critically assist clients instructions, and discuss those instructions with the
client, in light of the circumstances of the case and the range of probable outcomes  
 Allows counsel to refuse instructions, which if followed, Are likely to unreasonably or
unnecessarily inflamed conflict, negatively affects the health, welfare or security of the
children or commence a useless process; 
 Etc. 
 Diversity 
 a significant challenge for the legal profession has been ensuring the legal profession reflects the
diversity of the general population  
 Law societies have recognized the need and opportunity for regulatory responses to facilitate the
accomplishment of a more diverse profession  
 Law Society of Upper Canada p631 
 Recommendation one- reinforcing professional obligations 
 recommendation 2 - diversity and inclusion project 
 recommendation 3 - the adoption of equality, diversity and inclusion principles and practices 
 recommendation 4 - measuring progress through quantitative analysis 
 recommendation 5 - measuring progress through qualitative analysis  
 recommendation 6 - inclusion index 
 recommendation 7 - repeat challenges faced by racialized licensees project inclusion survey 
 recommendation 8 - progressive compliance measures 
 recommendation 9 - continuing professional development programs on topics of equality and
inclusion in the profession 
 recommendation 10 - the licensing process 
 recommendation 11 - building communities of support  
 recommendation 12 - addressing complaints of systemic discrimination 
 recommendation 13 - leading by example 
 Afford and Klippenstein v. Law Society of Upper Canada 
 Facts  
 The applicants make an application for: A declaration that the Law Society of upper Canada's
requirement that licensees are required to create and abide by an individual's statement of
 principles. the requirement to complete the statement of principles shall be interpreted as
follows: 
 shall not be interpreted to mean thy licenses have an obligation to endorse, demonstrate a
personal valuing of, or profess any specific belief or value 
 applies only to the professional conduct of licensees with each other, with
employees, with clients and with the public 
 not be interpreted as imposing any new obligation or any specific actions that licenses
will or must take 
 shall not be interpreted as derogating from or impinging upon licenses rights or free
thought, opinion and expression 
 should licenses fail to create and abide by an individual statement of principles going forward,
they may be subject to disciplinary sanction, including administrative suspension, by the Law
Society 
 the intention of the statement of principles is to demonstrate a personal valuing of equality,
diversity, and inclusion with respect to the employment of others, or in professional dealings
with other licensees, or any other person 
 the requirements to complete the statement of principles is a requirement to demonstrate a
personal valuing of certain values and the underlying obligation to promote equality, diversity
and inclusion 
 The intent and the underlying obligation to promote equality, diversity and inclusion is to
compel the expression of, the adherence to, and the belief in certain values 
 The applicants plead they and other licenses in the province of Ontario were not afforded a
reasonable opportunity to be heard prior to the adoption of the statement of principles
requirement. The adoption was made without sufficient input from or consultation with
Ontario licensees. The applicants pleased that the conduct of the Law Society amounts to a
breach of natural justice 
 Joshua Sealy-Harrington 
 The Law Society of Ontario previously required all lawyers to adopt and to abide by a statement
of principles. the sole requirement of any statement of principles was that it must acknowledge the
lawyers obligation to promote equality, diversity and inclusion. applicants alleged that the
requirement violated lawyers constitutional right to free speech by compelling licenses to
communicate political expression 
 Systemic racism is a problem in Canada. strategic for SOP opponents to mischaracterize the SOP's
regulatory scope to advance a narrative of Regulatory overreach.  
 i interpret the SOP to be a mere regulatory acknowledgement. From the plain text of the SOP
requirement three points follow 
 it was mandatory, not optional 
 it was an ongoing not intermittent obligation 
 it was an acknowledgment of extant obligations, rather than a creator of novel obligations 
 The guide repeatedly affirms the view that the stop requirement created no new obligations, but
instead, acknowledged existing ones. It referred to an obligation to promote equality, diversity and
inclusion generally, and in their behavior towards colleague, Employees, clients and the public.  
 the SOP requirement was more performative than declaratory. It required an acknowledgement of
each licensees' obligation to act in accordance with extent obligations, not that licensees think
anything preordained about those obligations. the SOP requirement mandated nothing more than
acknowledging one's extant professional and human rights obligations. the following then would
have met the requirement: I acknowledge my existing professional and human rights obligation. 
 there is no obligation on any lawyer to publicise their SOP or even disclose it. lawyers only need
to confirm its existence. it is a modest step towards enhancing regulatory compliance. it calls on
licensees to reflect on their professional context and on how they will uphold and observe human
rights laws to ensure that licenses do not lose sight of regulatory obligations in the scramble of
keeping a practice running. 
 the LSO seeks to combat systemic discrimination proactively, which existing instruments are
already directed towards addressing reactively. a proactive approach is, indeed, particularly critical
in the context of racial discrimination given how difficult it is to detect its subtle scent. 
  Overwhelmingly white resistance to the SOP and notably racialized support for it can support the
inference that this controversy was triggered by disagreement over equality, not speech. Many
SOP opponents have, by an open admission, made their disdain for equality initiatives clear: that
diversity is vacuous, is a misguided trend, overlooks how racialized people are simply
disinterested in the law. Such a demographic may misunderstand the issues because they cannot
see them from the perspective of minority lawyers and may not experience the same kind of
discrimination that some of us in the profession who are racialized experience. 
 Hadiya Roderique 
 My parents gave me my beautiful name, I sat in front of a screen in my brightly lit Toronto
apartment trying to figure out whether to use it on applications for jobs 
 Do I include my membership in the black law student association and point out that I want the
Harry Jerome scholarship? 
 black students who Whiten resume get 2.5 times more callbacks full 
 For first generation children the weight of our parents sacrifice is heavy even when unspoken. that
burden can influence our choices. I didn't want to struggle like they did I owe it to them not to. 
 pure merit is A myth. as much as merit may be about working hard, it is more accurately about
opportunity, belonging and fit 
 a fellow law student, a white woman, asked me if I was going to wear my natural hair to
interviews. I hadn't thought of that.  
 on Tuesday after more meetings, lunches, and breaks in the safety of coffee shops, I attended 2
cocktail parties. for a while I stood there dumbfounded by an interviewer lack of interest in me. he
knew I was there, I just wasn't worthy of his attention.  
 10 minutes later, attended another meeting where I decided I would do this on my terms. I don't
think I've seen any other student brave the chocolate said the head of the hiring committee. I
received an offer from the law firm 
 I worked hard at times sleeping 4 hours a night so I wouldn't say no to any projects. people
gravitate toward people who are like them. we call seriously and unconsciously surround herself
with others like us who in turn validate our own choices and values. but when a firm is mostly
white who do you have to be and what experiences do you have to have to belong? 
 when I was a child my father told me I could be anything I wanted if I put my mind to it. he
always added a reminder that as a black person I would have to be twice as good. so I learned to
excel for me for my father but to keep it hidden. 
 no matter what firms claim the hiring process is just not set up to test how good a lawyer you
might be, instead gut feelings and underlying similarities seem priced over all else; a significant
disadvantage for those from less privileged background. 
 Firms get excited about black people when they seem like they fit. Were thrilled to have me I was
the white black person. I got excellent first year reviews. As a second year I developed a
reputation for being smart creative and for anticipating people's need. the pressure to belong
intensified because I got closer to the summit.  
 Nowadays in Canada, overt acts of racism are rare instead the subtle ones tire you out and wear
you sense of belonging.  
 She resigned. She asked her dad what makes him proud of her to which he responded "it's your
tenacity, the confidence you have in yourself. Your character." 
 Firms should want to be diverse. this isn't political correctness it's business. even the mere
presence of minorities adds a competitive advantage. recent research has found that increasing
diversity weeds out mediocrity.  
 I still feel some discomfort, guilt, and shame about my time at the firm. Uncomfortable that I kept
myself boxed in.  
 Challenges for Lawyer Regulation: access to justice (Chapters 11) 
 Surveys in Canada burned Canadians' widespread dissatisfaction with the options available to address their
problems 
 access to justice in Canada is at a point of national crisis 
 a study of legal representation in Ontario family law cases found that 64% of applications and only 30% of
respondents had acquired legal representation 
 the limited social supports in place to address the public's lack of legal representation are also under increasing
strain. Rates of funding legal aid applications full legal representation have increased considerably. only those
facing the most acute financial need meet the criteria for financial assistance. there is considerable regional
disparity in eligibility. 
 the inequality of access to justice in Canada calls into question the very legitimacy of claims that we live
together in a society governed by the rule of law. 
 We must meet the challenge of providing access to justice to ordinary Canadians if we are to maintain public
confidence in the justice system. if people are excluded from the system, if they conclude it exists only to serve
the interests of the elites, they will turn away. 
 describing and defining the crisis 
o access to justice is the most pressing justice issue today 
o understanding the legal need 
 people do not always experience they're everyday problems as legal claims that are eligible to bring to
law 
 Justiciable problems = happenings and circumstances that raised legal issues but that people may never
think of as legal and with respect to which they may never take any legal action 
 justiciable problems are widespread among Canadians as a whole 
 19% of those with problems obtained advice from a lawyer, 28% obtained non lawyer assistance of
some kind, 33% searched out relevant information online for themselves, and 61% obtained at least
some advice from friends or relatives. 
o Identifying barriers to access 
 many people simply cannot afford to hire a lawyer 
 In a 2009 survey in Ontario, 31% of respondents who experienced problems accessing legal assistant
cited the cost of legal services as a reason for not hiring a lawyer, while another 20% said they were
refused or do you not qualify for legal aid 
 Lack of adequate public support to cover or offset the cost of legal services in addition to the cost of
legal services Will continue to be important pieces of the puzzle in explaining why so few Canadians
Take their problems to law 
 The relationship between cost and access to justice is not a straightforward one 
 higher income individuals can afford to pay a lawyer out of pocket an individuals with the very
lowest incomes may qualify for provincial legal aid programs - middle and lower middle income
earners experience acute financial barriers to affording the services of a lawyer 
 many justiciable problems appear never to be named as legal problems at all 
 The rise of do-it-yourself social attitudes and perception of some self-represented litigants that having
a lawyer will not result in a significantly better outcome are some motivations for not having a lawyer 
 Once a judicial problem is characterized by the person experiencing it as a legal problem, they are
much more likely to seek out help from lawyers and other legal professionals. however the
characterization of a problem is legal has not been found to affect the frequency with which individuals
seek advice from other sources 
 the complex and often confusing structure of justice system themselves can act as a deterrent for
people to have their disputes formally adjudicated 
 There are spatial and geographic barriers to access to justice - especially those living in rural and
remote region 
 Especially for members of marginalized communities, law is all too often an author of oppression
instead of a viable response to justiciable problems 
 Chief Justice McLachlin 
 civil justice system is a public good that serves more than private interests 
 the civil courts contribute quietly and significantly to social and economic well-being. they play a
part in the sense that we live in an orderly society they promote social order and facilitate the
peaceful resolution of disputes. 
 law is pivotal to the functioning of markets 
 access to justice incorporates both the subjective experiences and private demands of system users and
a view of access is itself a public good 
 obligations to address access to justice 
o the state 
 British Columbia (attorney general) v. Christie 
 Facts: Christie was a lawyer who provided legal services at low or no cost two individuals. her
practice ran into financial difficulties after the imposition of a 7% tax on legal services by the
British Columbia government. (1) It is argued that access to justice is a fundamental constitutional
right that embraces the right to have a lawyer. it is argued that a tax on legal services prevents
people from accessing the courts. Concludes that a tax on legal services also violates the right to
access the courts and justice. (2) the right to have a lawyer is constitutionally protected. 
 Issue: whether the constitution supports the right contended for. weather general access to legal
services in relation to court and tribunal proceedings dealing with the rights and obligations is a
fundamental aspect of the rule of law.  
 Decision: It is not. 
 Reasoning 
o Section 10(b) of the charter provides that everyone has the right to retain an instruct counsel 
o Section 7 of the charter has been held to imply a right to counsel as an aspect of procedural
fairness where life, liberty and security of the person are affected. but this does not support a
general right to legal assistance 
o the constitution, the jurisprudence and the historical understanding of the rule of law do not
foreclose the possibility that a right to counsel may be recognized in specific and varied
situations. but they do not support the conclusion that there is a general constitutional right to
counsel. 
 trial lawyers association of British Columbia v. British Columbia (attorney general) 
 Facts: the claimant asked the judge to waive her court hearing fees amounting to $3600 for a 10
day hearing to challenge the hearing fee regime as unconstitutional 
 Issue: the hearing fee regime's constitutionality 
 Decision: Section 92(14), read in the context of the constitution as a whole, does not give the
provinces the power to administer justice in a way that denies the right of Canadians to access
courts of superior jurisdiction. any attempt to do so will run afoul of the constitutional protection
for the superior courts found in section 96. 
 Reasoning 
 The legislature has the power to pass laws in relation to the administration of justice in the
province. this implies the power of the province to impose at least some conditions on how
and when people have a right to access the courts 
 The argument raises policy issues relating to how governments should generate revenue and
allocate their funds. hearing fees paid by litigants who can afford them may be a justifiable
way of making resources available for the justice system and increasing access to justice
overall. 
 the provinces' power to impose hearing fees is not unlimited. must be consistent with section
96 of the constitution act, 1867 
 the question is whether legislating hearing fees that prevent people from accessing the courts
infringes on the core jurisdiction of the superior courts 
 the historic task of the Superior Court is to resolve disputes between individuals and decide
questions of private and public law. measures that prevent people from coming to the courts
to have those issues resolves are at odd with the basic judicial function. 
 connection between section 96 and access to justice is further supported by considerations
relating to the rule of law. Access to the courts is under the rule of law one of the foundational
pillars protecting the rights and freedom of citizens. any action that interferes with such access
by any person or groups of person will rally the court's power to ensure the citizen of his or
her day in court. interference from whatever source falls into the same category 
 section 96 judicial function and the rule of law are inextricably intertwined. As access to
justice is fundamental to the rule of law, and the rule of law is fostered by the continued
existence of the section 96 courts, It is only natural that section 96 provide some degree of
constitutional protection for access to justice. 
 in the present case the hearing fee requirement has the potential to bar litigants with legitimate
claims from the courts. the tax at issue in Christie was not shown to have a similar impact. 
  Arguments that legislatures generally have the right to determine the cost of government
services undermine the proposition that laws cannot prevent citizens from accessing the
superior courts 
 R v. Moodie 
 Facts: in 2014 the applicants gross income was $12,547. in 2015, the applicants gross income was
$16,211. the applicant has little in the way of saving and does not own any assets. his checking
account is overdrawn and he also owes money on his credit cards. He was denied legal aid. legal
aid Ontario cited its threshold income levels of $9000 per year for a boarder and $12,000 per year
for a single income person. The income thresholds being used by legal aid Ontario do not bear any
reasonable relationship to what constitutes poverty in this country.  
 Issue: does the mere fact that an accused person he's denied legal aid because there are above the
income thresholds established by legal aid Ontario, automatically entitled them to state funded
counsel. oh 
 Decision:  it is necessary that he be provided with state funded counsel. 
 Reasoning:  
 the low income cutoff is the level of income below which persons are paying a
disproportionate amount of their income for basic necessities (Food, shelter and clothing).
obviously it means that they do not have sufficient income to allow for extraordinary
expenses. 
 the crown submitted that the applicant had failed to take adequate steps to try and find other
sources of funds to pay defense counsel. however no financial institution is going to loan the
applicant money. the applicant has looked for a second job but he has been unable to find
one. 
 the costs of the trial were estimated by council for the applicant using the lowest hourly rate
permitted by legal aid Ontario At more than $11,000. 
 the province is entitled to set income thresholds to qualify for legal aid even if those
thresholds are arbitrary ones. if the charge that an accused person is facing is less serious, or if
the factual circumstances are straightforward, it may well be that an accused person, in that
situation, will be compelled to proceed to trial unrepresented. 
 this is a complex case that requires the applicant to have counsel. the trial itself will take 5 to
7 days at a minimum. if the severance application is granted, then there will be two trials to
contend with. also the applicant would face a term of imprisonment if convicted. 
 it is necessary for the applicant to have counsel in order to have a fair trial. he does not have
access to other sources of funds. 
 Newfoundland and Labrador (attorney general) v. UASHAUNNUAT (INNU OF UASHAT AND OF
MANI-UTENAM) 
 Facts: John as well as a number of chiefs and councillors representing their respective families,
bands and nations filed suit for a permanent injunction, damages and a declaration of aboriginal
title and rights. the defendant mining companies brought motion to strike arguing that portions of
the claim concerned real property situated in Newfoundland. had this motion succeeded, the
claimants would likely have been forced into duplicate proceedings in Newfoundland and
Labrador. 
 Decision: requiring the Innu to be bifurcate their claim would undermine the twin constitutional
imperative of access to justice and the honor of the crown. the owner of the crown demands
consideration of the costs and complexity of litigating claims to aboriginal rights and title.  
 Reasoning:  
 Can we say that it is in the interest of justice that essentially the same debate should take place
in two jurisdictions that must both apply the same law, when the courts that will hear the
cases are both federally appointed 
 section 96 judicial function and the rule of law are inextricably intertwined... 
 where a claim of aboriginal rights or title straddles multiple provinces, requiring the claimant
to litigate the same issues in separate courts multiple times erects gratuitous barriers to
potential valid claims. it is particularly unjust given that the rights claimed pre-date the
imposition of provincial borders on indigenous peoples 
  the specific context of section 35 claims that straddle multiple provinces, access to justice
requires that jurisdictional rules be interpreted flexibly so as not to prevent aboriginal peoples
from asserting their constitutional rights, including their traditional rights to land. 
 The honour of the crown requires increased attention to minimizing cost and complexity when
litigating section 35 matters. 
o lawyers and the legal profession 
 provincial and territorial Law Societies are typically empowered to regulate the legal profession in
pursuit of the public interest.  
 Vocation 
 location is often aligned with the discourses of goals, values, and norms 
 location is used in contradistinction to academic, Which is often characterized as abstract,
conceptual, and theoretical. Vocation is often aligned with the discourses of skills, competencies,
and proficiencies. 
 membership in the legal profession is not just a private preference, a personal career choice, or
exercise of an individual liberty right. rather it is a publicly conferred privilege, a public asset
contingent on a larger social calling 
 The constitutional values give content to the concept of the public interest. they provide the jurist
generative foundation for public interest vocationalism tailored to the unique history and current
context of Canada. they help us to conceptualize the ethical identity of the contemporary Canadian
lawyer and comprehend how fostering access to justice is a constitutive component of that
identity. 
 Trusteeship 
 David luban states: Strictly speaking, it might be objective that the legal system's overall efficacy
is not the special responsibility of lawyers more than any other citizens. just as owning a cafe does
not make me especially responsible for the food distribution system. if we are to think of lawyers
in market terms, we should see that society has granted lawyers an exclusive license to market the
law itself. lawyers are like trustees - agents designated by a principle to administer a good That the
principal has created for the benefit of a third party 
 In this trusteeship model, lawyers have a special obligation to foster access to justice because they
are collectively and exclusively empowered to provide legal services. 
 Alice Woolley 
 position of lawyers has been analogized to that of the public utility granted a monopoly and,
consequentially, placed under a universal service obligation to customers. 
 lawyers are not a monopoly in an economic sense. the legal profession has a monopoly but
individual lawyers do not. 
 there are more than sufficient numbers of lawyers to ensure that, absent other forms of market
failure, the price for legal services will be set by properly operating competitive forces. it
should be noted in this respect that after admittance to law school, the barriers to entering the
Canadian profession are relatively insignificant; no Canadian province has high failure rates
on its bar examination. 
 in essence lawyers are no different from pharmacists, dentists, speech therapists, etc. 
 Absent some other form of market failure, lawyers will be subject to competitive forces and
will earn no more than is warranted by their human capital (knowledge, skill, education,
experience, reputation, discretion and good judgment). The attempts to ensure that consumers
are protected from charlatans asserting knowledge of the law " does not warrant a decision to
place a special burden on lawyers to meet the legal needs of the poor" 
 David Luban: The legal system is a construct of the human mind and a creation of the state. It
does not, like our need for health or dental care, inhere in the human condition, When lawyers
are given the exclusive right to access that system they are also given a special trusteeship
role within it.  
 it is not simply that lawyers are extracting monopoly rent; rather it is the two fold claim that
the role of lawyers within the legal system places them under a special moral or fiduciary type
duty relative to society as a whole, and that lawyers gain economic benefits from certain
aspect of their role within that system, which justify holding lawyers especially responsible
for ensuring access to justice. 
  there are nonetheless significant issues with these theories. Luban's primary characterizations
of the legal system is a product of the state and is therefore distinct from the licensing of other
professionals. the lawyer's monopoly he's manufactured by the state, while the grocers
business could exist without the participation of the state. while the individual considered
alone may have no inherent need for a system of laws, any individual hoping to coexist in the
social order will require rules of social interactions (laws) and a means of dispute
resolution. If lawyers are trustees in distributing law, so to our physician in distributing health
care, dentist in distributing dental care, and teachers in distributing education.  
 the rights of confidentiality and privilege exist to preserve the dignity of individuals
intersecting with the legal system and to ensure that those individuals are able to access the
system effectively. costs associated with those rights, such as less efficient litigation and
higher prices for lawyers, are not rents attracted by lawyers at the expense of consumers. there
are simply the costs associated with those protections. if those costs are unacceptably high, it
might be worthwhile to check or amend the regulatory rules which give rise to them, but
imposing a tax on lawyers, whether in the form of money or a service obligation, has only a
loose logical connection to those costs.  
 as law school tuition rises, graduates might simply be unwilling to take on less remunerative
employment. while it would be difficult to assert that an unrepresented individual can access
the legal system as efficiently and effectively as one with legal counsel, it is not true that the
absence of a lawyer absolutely precludes access to the system. 
 traditional arguments thus fail to justify imposing a special obligation on lawyers to foster
access to justice. monopoly arguments have numerous problems related to their conception of
the legal system and of the role of lawyers within that system, and to their doubtful assertion
that lawyers are earning economic rents as a consequence of their clients legal rights. 
 Market failure 
 another approach to the question of whether individual lawyer and the legal profession as a whole
have a special obligation to address access to justice 
 lawyers monopoly on entry into the legal profession plays a central role in Luban's trusteeship
model or professional obligation. If legal services markets are fully competitive, then the price of
those services well accurately reflect the lawyers own costs (education, overhead, etc.) And will
largely be governed by the level of potential clients' demands for legal advice. 
 but if this competitive dynamics are absent or impeded by inherent features, these market failures
may determine in part what lawyers' fees are too high and thus why access to lawyers is too
limited 
 Gillian K Hadfield 
 The high cost of legal services is a problem of virtue, not incentives. lawyers charge high fees
only to the extent that they fail and their professional obligation to the public interest.
Conversely, fees charged by ethical attorneys are not high 
 law requires substantial intellectual training. itis therefore in the public interest that law be
practice only by those with such training. only they can judge the capacity of others to
practice and the quality of practice delivered to clients, and therefore entry into practice and
regulation of practice is delegated to those with training. The obligation then falls to the
profession not to take advantage of the absence of external controls: to put public and client
interest ahead of self-interest.  
 Hadfield suggests that any special obligation on the part of lawyers to foster access to justice
should rest not on ideas of professionalism or vocationalism, but should instead be understood
as a justified response to systematic failures in the market for legal services. 
 Alice Wooley identifies specific features of the market that may lead to such competitive
failures, thereby creating opportunities for lawyers to charge excessive fees and justifying
more direct intervention by regulator or the state to make legal services more accessible. 
 First, what one lawyer is capable of providing is inherently dissimilar to that which another
lawyer can provide. clients generally lack good information about what type and extent of
work is needed to address their problems leaving them at a distinctive disadvantage in
evaluating the quality of services being provided. 
  Second, because the practice of law requires extensive training and because entry into the
profession is tightly regulated, the supply of lawyers and their legal services in the market at
any given time is relatively inflexible. 
 Finally, services purchased from lawyers by private clients also cause wide-ranging effects or
externalities on society as a whole. although individual clients are likely to price lawyers
services based on the value of the services in resolving the immediate disputes, legal
outcomes in any given case can have both positive and negative effects in terms of the use of
public resources, establishing legal precedents, etc. 
 responding to the crisis 
o an overview 
 access to civil & family justice: a roadmap for change 
 people experience and deal with most everyday legal problems outside of the traditional formal
justice system. the justice system must acknowledge this reality by widening this focus from its
current (and expensive) court based "emergency room" orientation to include education and
dispute prevention. To prevent heading to jail or court, to prevent it before it starts 
 Will provide accessible justice services at a time and place at which most everyday legal problems
occur. 
 A much create a degree of coordination and integration is required to avoid duplication of effort
and to provide clear paths for the public to reliable information. this could be achieved through
enhanced coordination and cooperation among providers 
 the justice continuum must reflect and be responsive to Canada's culturally and geographically
diverse population. And to recognize that there are many barriers to accessing the formal and
informal systems. 
 Modernize and expanding the legal service sector. innovations are needed in the way we provide
essential legal services in order to make them available to everyone. Specific innovations and
improvements that should be considered and potentially develop include: 
 limited scope retainers - unbundling 
 alternative business and delivery models 
 increased opportunities for paralegal services 
 increase legal Information Services by lawyers and qualified non lawyers 
 appropriate outsourcing of legal services 
 Summary advice and referrals 
 alternative billing models 
 legal expense insurance and broad based legal care 
 Pro bono and low bono services 
 creative partnerships and initiative designed to encourage expanding access to legal services -
particularly to low income clients 
 program to promote justice services to rural and remote communities as well as marginalized
and equity seeking communities 
 programs that match unmet legal needs with unmet legal markets 
 Make access to justice a central aspect of professionalism 
 access to justice should feature prominently in law school curricula, bar admission and
continuing education program, codes of conduct, etc.  
 creative and proportional processes should be available for all legal problems that need
dispute resolution assistance 
 a range of dispute resolution services should be offered with most courts and tribunals. some
form of court-annexed dispute Resolution process - Mediation, judicial dispute resolution, etc.
- should be more readily available in virtually all cases 
 online dispute resolution options, including court and non court based online dispute
resolution services, should also be expanded where possible and appropriate. appropriate and
accessible processes must be readily available for litigants who will present themselves on
their own or with limited scope retainers. 
 Case management should be readily available. case management officers, who may be
lawyers, duty counsel, or other appropriately trained people, should be readily available at all
 courts and tribunals for all cases, with the authority to assist parties to manage their cases and
to help resolve their disputes.  
 Courts and tribunal processes and procedures must be more accessible and user friendly 
 the technology in all courts and tribunals must be modernized to a level that reflects the
electronic needs, abilities and expectations of a modern society. interactive court forms
should be widely accessible. 
 Teleconferencing, videoconferencing and Internet based conferencing should be widely
available for all appearances 
 better public communication, including through the use of social and other media, should
be encouraged to demystify the court and tribunal process 
 Patricia Hughes 
 the goal in most of these reports is that people seeking to access their legal rights have sufficient
help in order to get a fair result. their proposal are designed to make it easier to obtain legal help or
to do without legal help 
 some of these common traits, (low Computer literacy, lack of trust in the system, residence in
remote areas of the province, isolation or lack of family or community support, among others)
need to be taken into account in designing or implementing otherwise generic solutions to increase
access to justice.  
 we might call this impediments " operational barriers" since the result from the way initiatives to
increase access to justice may operate or be structured. for example, literacy and place of
residence (rural or remote) are factors that means significantly affect how some individuals can
benefit from the generic solutions of use of technology and unbundled legal services. 
 the failure to take more specific but common traits into account when designing and implementing
these changes will create an underclass of people still excluded from the new system. 
o case study:" low bono legal incubators" p701 
o Case study: paralegal service providers 
 Should lawyers be the only professionals localized to provide legal advice, especially if their advice is
too expensive or otherwise inaccessible? if not, who else should be included, and which governing
authorities will provide the appropriate level of oversight. some Canadian jurisdictions have already
opened the door to paralegals, notaries, and other individuals to supply at least some legal advice
services. 
 Report of the legal services regulatory framework task force 
 there is no point in creating a system that enables people to access uniformed legal advice, because
more often than not, that advice will simply lead to further legal problems. 
 it is also clear that, as it is expensive to become a lawyer, some areas of practice in which advice is
needed are simply uneconomical for lawyers to provide legal services. 
 if there is an unmet need for legal services, and lawyers are the only group that can provide legal
services, then either lawyers have to review the way they offer services or some other group or
groups will need to be trained to provide services to meet those areas of unmet need. Otherwise,
access to justice becomes a meaningless ideal to a large segment of the population. 
 Expanding the market of service providers must not come at a cost of harming the public's ability
to obtain helpful advice 
 public interest 
 First, does the existing model of reserving the right to practice law to lawyers contribute to the
access to justice problem by creating a marketplace in which a sizable portion of the public
cannot afford lawyers' services, while simultaneously limiting competition from other service
providers? 
 Second, how is the public protected properly in a model that expands permitted practice of
law to non lawyers? 
 the three main reasons for seeking no assistance where: (1) legal assistance was not required or
necessary, (2) legal assistance was too costly, (3) legal assistance was too difficult to access 
 the 30% who do seek assistance with their legal problems only half sought assistance from a
lawyer 
  most respondents who sought assistance from a lawyer had monetary gain or loss at stake of,
on average, $121,000, while those who sought help from a non-lawyer had at stake, on
average, $47,000. 
 cost and not knowing how to obtain assistance were also key indicators. a lack of knowledge was
the most difficult issue for respondents to overcome in resolving legal problems: (1) not knowing
what to do, (2) thinking nothing could be done, (3) being uncertain of their rights. the task force
therefore concludes that it is in the public interest to permit non lawyer legal services. 
 public protection arises from ensuring that people who provide legal services are properly trained,
regulated, and carry liability insurance in circumstances where the absence of such safeguards
create an unacceptable level of risk. 
the task force suggests that the better way to approach concerns about new classes of legal service
provider is to  
 start by identifying what legal services the public needs but to which It does not currently
have adequate access. create the moral imperative to act. 
 the next, identify that training that is required to ensure that non lawyer providers can
competently provide those services. requires consultation with education providers and
practitioners. the regulatory and insurance framework for new categories of providers can be
developed. 
 next step, seek a legislative amendment to permit the Law Society to develop the
credentialing and regulatory scheme for such a change. if the government agrees, in-depth
work will be required to identify the specific types of legal services that the public requires
and the type of training that is necessary to provide those services in a competent manner. A
regulatory and governance scheme would also have to be developed at that time.  
 The task force rejected the approach that exists in England where there are multiple legal service
regulatory bodies operating under an omnibus regulator. the Law Society is the proper body to
regulate new classes of legal service providers who are engaged in the practice of law.