As young legal professionals, we don’t always have the ability to make decisions about what clients we accept and at what rates. Many young firm-based lawyers are subject to the demands of senior partners who may care more about the bottom line than providing legal services to those in need. While others practicing solo may be charged with the heavy burden of paying down debt from student loans, business costs, etc.. Whatever the cause, there are several financial reasons for denying services to “modest means” or “no means” clients.
It is an unfortunate truth, but profit is often the driving force of a law firm. Firms are businesses after all, and the last time I checked we are still living in a capitalistic society. However, this creates a serious issue for our justice system. Many clients are unable to retain counsel in what may be their darkest of hours simply because they are not “of means” clients. Business goes on as usual for those few who can afford services, but the remainder are left unable to meaningfully participate in a fundamental aspect of our democracy, i.e. our justice system.
The effects of not having legal counsel can be detrimental in some cases. Some people may remain in abusive relationships because they don’t understand how to start a court application for custody and child support, further exposing their children to violence and dispute. Others accept plea deals to avoid lengthy complex trials, but are now subject to criminal records and conditions. There is a plethora of negative consequences dealt out to those who cannot navigate the complex legal system without counsel, yet simultaneously find themselves unable to afford counsel.
But what can be done to provide increased access to justice for those who cannot afford the costs? Of course, there are already many initiatives run through Legal Aid, community clinics, law schools, etc. Some lawyers provide pro bono services and reduced rates. Recently Legal Aid became more flexible with respect to their financial criteria to broaden their scope of services. It also now seems to be more common for lawyers to provide services on limited scope retainers to reduce overall costs to clients. Lawyers are also participating in JusticeNet (www.justicenet.ca), which is a non-profit referral organization in Ontario that connects clients with modest means to lawyers offering reduced rates. However, there is much more to be done to allow the public to meaningfully participate and access our justice system, as even with all of these initiatives, the majority of people still cannot afford a lawyer.
One more obvious solution may be to radically increase public funding for legal services. After all, other core institutions such as health, education, and emergency services are publically funded. So why is it different when it comes to legal services? We must then also ask ourselves, what are the challenges in making such a drastic shift to our justice system, and how can we deal with these? Another solution may be to follow the example of some European countries that have introduced legal protection insurance, allowing people to access legal services without the overwhelming blow of the full bill. But would this really solve the issue for people who could still not afford the insurance? Whatever, the solution, I’m sure a combination of several approaches will be required.
However, until further measures are taken to relieve the situation, we as lawyers need to be mindful of our contributions to the financial aspect of access to justice. I’m not saying that we shouldn’t want to please those senior partners or make hefty payments to our student loans. What I am saying is that a better balance needs to be struck between the business of law and the practice of law, and especially so in light of the severity of the problem.