Unbundling and the self-represented litigant

By Michael Rappaport

I was sceptical when I first began to volunteer for Law Help Ontario’s self-help centre in Ottawa last spring. The centre, housed on the fifth floor of the Superior Court House on Elgin Street, is a walk-in clinic where unrepresented litigants in civil actions can get advice from pro bono duty counsel on a first come, first served basis. How much help could I possibly be to an unrepresented litigant, with only a brief consultation, with next to no background information or time to research the client’s legal problems?

I was pleasantly surprised to find not only could I be of some help, but also many self-represented litigants were fully capable of managing their cases and making progress with only minimal assistance. My experience at Law Help Ontario (LHO) opened my eyes to a relatively new model for delivering legal services – one which could make access to lawyers much more affordable for self-represented litigants in civil and family courts in Ontario.

Pro Bono Law Ontario (PBLO), which runs LHO’s centres in Ottawa and Toronto, refers to the provision of limited legal assistance to help unrepresented litigants address discrete parts of their cases as the “brief services model.” While the relationship between client and counsel at LHO doesn’t involve a traditional retainer agreement (administrative mechanisms are in place to demarcate the limits of legal services available at the centre), it shares some similarities with “limited legal representation” which is often discussed in the context of the “unbundling of legal services.” In November, PBLO – which served 11,427 clients out of LHO’s three court-based offices in Ottawa and Toronto last year – will be launching an unbundling pilot project as an offshoot of LHO.

Many unrepresented litigants can neither afford nor need a lawyer to oversee every step in their cases from start to finish. Most unrepresented litigants, however, would benefit from having access to a lawyer, at least on an as-needed basis. Indeed, one of the major findings of the Ontario Civil Legal Needs Project is that a significant percentage of the public (60 per cent) want to be able to self represent with some legal advice when they have a legal problem.

Perhaps some clients might want help drafting pleadings, but may be comfortable appearing in court unrepresented. Conversely, a few clients might want a lawyer to represent them in court, but can handle the rest of the stages and submissions in litigation on their own. Others might want to consult with a lawyer at various stages of litigation for advice on procedural matters or legal strategy. Self-represented litigants should be empowered to purchase only the services they require and can afford from lawyers without being compelled to hand over carriage of their cases to counsel.

Law societies across Canada have begun to address the ethical and practical issues involved with the provision of unbundled legal services and limited scope representation. The law societies of Alberta and B.C. and the Nova Scotia Barristers’ Society have all addressed unbundling of legal services directly or indirectly in their codes of professional conduct. In Ontario, the Law Society of Upper Canada (LSUC)’s rules of professional conduct neither prohibit nor provide any guidance on the use of limited scope retainers. Recently, however, an LSUC taskforce has conducted consultations and released a background paper on this matter.

Having read the rules, both enacted and proposed, for the provision of limited legal representation, my fear is that many lawyers will be reluctant to embrace this new model. While the scope of representation is narrower, the level of professional liability appears to remain the same. Understandably, law societies are loath to create a lower standard of competency for limited legal representation. The reality, however, is that lawyers who provide services for discrete stages of litigation lack the same level of control and information as lawyers who have carriage of legal actions from start to finish. Ultimately, if limited legal representation is going to be a viable model, the level of professional liability for lawyers must also be limited.

In a leading case on professional liability and limited retainers, Lenz v. Broadhurst Main, [2004] O.J. No. 288, the Ontario Superior Court of Justice held, “The first source of a lawyer’s duties is the retainer[…]where there are special terms in the contract (i.e. a limited retainer), there can be no liability in tort when the solicitor performs the limited terms of the contract with reasonable care, skill and knowledge and he or she has no obligation to act beyond the instructions in the retainer.”

The Ontario Court of Appeal upheld the decision in Lenz, and its ratio would be a sensible rule to adopt in codes of professional conduct. The codes should also recognize the inherent challenges of providing piecemeal advice and assistance, which should be communicated to the client both orally and in writing in the retainer agreement.

The perfect is the enemy of the good – ideally, all litigants would be able to afford top notch lawyers to represent them zealously from the beginning to the end of their cases. While limited legal representation may not be the ideal option, for many self-represented litigants it may be the only affordable one.
My experience at LHO has made me into a believer in the benefits of limited legal representation for unrepresented litigants who could not otherwise afford a lawyer. Transforming this vision into a widespread practice will require developing carefully crafted rules which strike a balance between the scope of the limited retainer and the professional liability of the lawyer.