Enhanced access to justice needs more than lawyers and paralegals: report

Report calls for more clarity from regulators and collaboration with community-based non-profits

Enhanced access to justice needs more than lawyers and paralegals: report
Julie Mathews is executive director of Community Legal Education Ontario. David Wiseman is a professor at the University of Ottawa Faculty of Law.

To enhance access to justice in Ontario, more needs to be done than improving access to licensed legal service providers and requires clarity from legal regulators and collaboration with not-for-profit community groups, said a new report from Community Legal Education Ontario.

The report “Community Justice Help: Advancing Community-Based Access to Justice,” recommends that the Law Society of Ontario recognize that community justice help aligns with its regulatory regime and that workers in community-based organizations should be empowered with “practical tools and resources” and be supported by “appropriate justice sector partners,” including the Association of Community Legal Clinics of Ontario, the LSO and others. The report states the LSO or the Law Foundation of Ontario should convene a series of roundtables to discuss and implement the report’s recommendations.

The report calls on the LSO to give an “explicit endorsement” of the opinion that its current regulatory framework allows for community justice help and adopt and communicate a “protocol of regulatory restraint” to alleviate the chilling effect potential prosecution has on community justice help.

“The big thing that we suggest… would be the legal profession and lawyers really acknowledging and coming out in support of this work by community organizations so that they're no longer constantly struggling with this grey-zone of uncertainty,” says executive director of CLEO Julie Mathews, who produced the report with Professor David Wiseman of the University of Ottawa Faculty of Law.

The report also calls on lawyers, paralegals and legal educators to offer support to not-for-profit, community-based organizations providing community justice help, develop training programs and other resources and develop ways to assist people in finding “good quality and accessible legal services.”

Both Matthews and Wiseman stress that movement toward enhancing lawyer-community-worker collaboration and clarifying the grey area between legal help and legal advice should not be made at the expense of the legal aid system.

“It should not be an excuse to pull back on legal aid or legal clinics,” says Matthews.

“We think that – if anything – all of that should be expanded,” adds Wiseman. “But even if that were to be expanded, or at least not reduced, this is another way to supplement the help that's out there.”

In CLEO’s work, Mathews says it has often been unclear to those working in the community where the line is between help with legal problems and legal advice that could be deemed unauthorized practice of law.

Wiseman ran into the same grey area with the University of Ottawa Refugee Assistance Project when he was developing legal information materials for refugees and refugee settlement and support workers. Matthews and Wiseman met at a conference and together made a proposal for The Law Foundation of Ontario’s Community Leadership in Justice Fellowship, through which they produced the report.

The report cites a survey conducted by the Canadian Forum on Civil Justice, which found that over a three-year period, almost half of all Canadian adults will experience at least one “everyday legal problem,” but only 19 per cent of people with an everyday legal problem will seek formal legal advice. Around 28 per cent of people with everyday legal problems will seek assistance from government agencies, volunteer associations, unions, advocacy groups and other non-lawyer resources, said the report.

But the fear of being prosecuted for the unauthorized practice of law creates a chill among the not-for-profit sector and makes community workers nervous about providing certain types of assistance to clients, say Mathews and Wiseman.

One common area of confusion is helping clients fill out legal forms.

“You can give legal information, but that's defined, by common perception in the legal profession and otherwise, to be giving general information to someone about the type of situation that they're in, but not giving anything that's individualized or that helps them to assess their own situation in relation to the general legal framework,” says Wiseman.

“As soon as you start helping someone with a form, you could try to strictly confine yourself to just general legal information, but that's not very useful for an actual person with an actual problem, who actually wants to know how best to fill out the form.”

“But as soon as you're giving that more individualized assistance… then you're in danger of being perceived as providing legal services or legal advice,” he says.

Mathews and Wiseman argue that it is a misperception of the Law Society of Ontario’s regulatory framework that community workers may only provide “general legal information and referrals.” And they maintain that they are not proposing to redefine the dividing line between legal information and legal advice.

There are good examples of collaboration with lawyers and paralegals in legal clinics, where the information a community worker brings about the legal context can be helpful and – in partnership with the lawyer – bring the client’s issue forward, says Wiseman.

The Law Society should see community workers a “key partners in delivering access to justice,” he says.

“They're not going to be replacing what lawyers or paralegals do, but they can do some of the work that doesn't require that really advanced levels of the expertise… they're already accessible to the client on the ground, right. They are already in the community. So they are already a first port of call. And so it would be better if the legal profession, as a whole, tried to support that and enable that and work with that,” Wiseman says.

“The important thing is to make sure that community justice helpers are going have the knowledge and experience they need, that they're doing it in a proper ethical framework. And that they're providing community-level, holistic, integrated support… which is already happening in a lot of community organizations,” says Wiseman.

The report is based on research and consultations done between Sept. 2018 and Dec. 2019 and builds on the findings of the 2018 report from the Law Foundation of Ontario: Trusted Help: The Role of Community Workers as Trusted Intermediaries Who Help People with Legal Problems.

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