Law Times

Law Times • February 9, 2015 Page 3 www.lawtimesnews.com Lawyers get primer on options for unbundled services By yaMri taddese Law Times nrepresented litigants often complain about judges who tell them to get a lawyer, but a Supe- rior Court judge says members of the judiciary often don't know what to tell self-represented parties about alternative ways of getting assistance such as unbundled legal services. At a symposium last week, Superior Court Justice Alison Harvison Young noted judges often resort to en- couraging self-represented litigants to seek legal advice even though they're aware of the barriers to doing so. "I feel really disingenuous when I say that when I know full well that's not a possibility," said Harvison Young, adding she'd like to know what she should tell litigants about the more likely possibility of getting a limited-scope retainer. "That's the sort of thing judges could use assistance on," said Harvison Young. Harvison Young was speaking at the Law Society of Upper Canada on Feb. 3 at a symposium presented by the Social Justice Tribunals Ontario as well as the action group on access to justice, a law society effort aimed at fostering collaboration across the justice sector to solve the access to justice problem in Ontario. Last week's discussion was the first of a three-part se- ries on the role of limited-scope retainers in enhancing access to justice. Harvison Young said that as a judge, she's "a ben- eficiary of the services litigants obtain in this way." Al- though limited-scope retainers aren't a panacea for the access to justice problem, they can be "enormously help- ful," she said. Harvison Young, a family court judge, recalled hav- ing to adjudicate a motion involving two unrepresented litigants during the early days of her time on the bench. At first, she feared what could happen with the motion but, she said, she was pleasantly surprised to find the litigants' materials professionally prepared even though neither of them had counsel present. When people get some help from lawyers before coming to court, it's easier to manage both their cases and their expectations, according to Harvison Young. Former deputy attorney general George Thomson, the keynote speaker at the symposium, said efforts to improve access to justice through unbundled legal services "can be hampered if judges aren't aware how im- portant it is." It's important to have " ju- dicial champions" in that area, he said, adding that those champions should speak out about the impor- tance of unbundled legal ser- vices as a piece of the access to justice puzzle. Some 20 years ago, it was much more acceptable for judges to speak out on issues and "get things done," said Thomson. "I actually think we lost something in that area." Janet Whitehead, a lawyer with George Murray Shi- pley Bell LLP in Sarnia, Ont., said that with "a whole host of people" on the spectrum between those who can af- ford legal counsel and those who can't, unbundled ser- vices are a way to capture some of them. "Targeting the service the client needs has always made sense to me," she said. But she also noted she uses her judgment to screen clients she believes could do well with unbundled services. When it comes to issues like mental illness, addiction or anything else that may prevent people from manag- ing their cases, taking a limited-scope retainer may not be the best course for both the client and the lawyer, said Whitehead. And some law- yers don't take limited-scope retainers out of a fear of being "sucked in" a proceeding, said Whitehead, adding they also worry a judge who sees part of their work on a file will insist they show up to court to do the rest of it. Others worry about neg- ligence claims for work that wasn't part of a limited-scope retainer, she noted. The key, according to Whitehead, is proper communication. "You need to clearly identi- fy who is responsible for what and why so there's no misun- derstanding," she said, adding lawyers should write letters confirming what they've done and the limit of their commit- ment. "Just talk to your cli- ents," she said. For others, the concern is financial. Some lawyers worry they won't make enough money if they take limited-scope retainers, according to Whitehead. "I have to tell you, I actually look at it a little bit differ- ently," she said, noting she'd rather get paid for the lim- ited work she has done on a file than end up with a client who can't afford to pay the bill for full representation. Whitehead also said clients who have retained a law- yer for some of the work on their files often come back for more help. "Sometimes, in a modest way, this actually is a good business strategy," she said. On that note, she echoed Thomson, who said there's some evidence from the United States that lawyers and paralegals who have tak- en limited-scope retainers and done it "properly" have increased their workloads. LT NEWS Untitled-1 1 2015-02-05 2:53 PM 'Sometimes, in a modest way, this actually is a good business strat- egy,' says Janet Whitehead. U

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