Law Times

Page 8 April 11, 2016 • lAw Times www.lawtimesnews.com COMMENT THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES NEW EDITION Perfectbound Published December each year On subscription $80 One time purchase $83 L88804-764 Multiple copy discounts available Plus applicable taxes and shipping & handling. (prices subject to change without notice) Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. More detail and a wider scope of legal contact information for Ontario than any other source: • Over 27,000 lawyers listed • Over MBXȮSNTBOEDPSQPSBUFPGȮDFTMJTUFE • 'BYBOEUFMFQIPOFOVNCFSTFNBJMBEESFTTFTPGȮDFMPDBUJPOTBOEQPTUBMDPEFT Includes lists of: • Federal and provincial judges • Federal courts, including a section for federal government departments, boards and commissions • Ontario courts and services, including a section for provincial government ministries, boards and commissions • Small claims courts • The Institute of Law Clerks of Ontario • Miscellaneous services for lawyers ORDER YOUR COPY TODAY! OLPB_LT_Apr11_16.indd 1 2016-04-06 2:48 PM On-demand court counsel for the self-represented? A revolutionary change for family law STACY M. MACCORMAC For Law Times W hen do self-repre- senting litigants need a lawyer most? If you've watched needlessly messy and lengthy courtroom proceedings, like I have, the answer is when the litigant is standing in front of a judge. Currently, the Ministry of the Attorney General says more than 57 per cent of family law litigants are self-representing. In my experience, in some jurisdic- tions, it is closer to 70 per cent. Who are these self-represent- ing litigants? I believe many of them are middle class and have household incomes of about $40,000 to $90,000 per year. In Ontario, those with no incomes or low incomes have the assis- tance of duty counsel available to them and wealthy litigants can afford private counsel. at means the ones going solo are middle-class litigants. is is extremely troubling. e middle class is society's so- cial and financial backbone. When breakdown of these fam- ily units occurs, an effective res- olution is critical. To compound matters, self- representing parties cost the jus- tice system unknown millions of tax dollars. is is due to delays caused by the volume of cases and the lack of legal knowledge parties have in navigating the proceedings. ere is an emer- gency situation when it comes to inhibited access to justice and skyrocketing government costs. e recently announced joint family law justice review by the Ministry of the Attorney Gener- al and the Law Society of Upper Canada is mandated to deter- mine if non-lawyer involvement is the solution to this emergency situation. With respect, in my opinion, it is not. Family litigation is intense- ly emotional and deceptively complex. e issues involve child custody, incomes, real es- tate, businesses, pensions, es- tates, mental illness, domestic violence, child abuse, drug and alcohol addiction, and impend- ing bankruptcy. ere are oen long-term negative consequenc- es to hastily made, uninformed short-term agreements or or- ders. Lawyers are very cognizant of all of this. As a result, they can provide quick and invaluable assistance to a self-represented litigant and the court. Trying to solve the problem of in-court legal representation for litigants by suggesting that non-lawyers potentially repre- sent them is akin to suggesting that a non-doctor perform sur- gery. Lawyers know each step in a family litigation case must be carefully considered to avoid prejudice at the next step or at trial. e courtroom is the litiga- tion lawyer's operating theatre. ere are no substitutions that can truly protect the public. e family law review propos- es that a middle-income-earning litigant may be represented at a court hearing by a law student, law clerk, or paralegal. In this same situation, a low- or no-in- come litigant will be represented by a family lawyer, through duty counsel. is is neither fair nor balanced. Plus, research indi- cates that most family litigants would prefer to be represented by a lawyer in court if they could afford it. is was reflected in a recent study conducted by Dr. Julie Macfarlane called "e Na- tional Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants." Macfarlane found that even though self-representing litigants reported extreme stress over completing, serving, and filing court documents, the most in- tensely intimidating aspect they reported always came down to their actual court appearance. So what is a possible solu- tion? I believe the time has come to allow experienced family law- yers to be on-site at courthouses and available on demand. A middle-class litigant may not have $10,000 or $20,000 (or more) for a traditional legal retainer arrangement, but he or she may be able to pay an hourly rate for a private lawyer to pro- vide them with representation at a court appearance. e model proposed is not based on lawyers providing free services. ey do not need to be, nor should they be, free. Family litigation lawyers are experts in this field. Limited scope retain- ers and unbundled services are the answer the public needs. With a limited scope retainer, a litigant can pay for a lawyer's ad- vocacy services on a short-term basis. e concept of on-demand day-of-court counsel may raise fears that potential paying cli- ents would opt to use day-of court services each time they go to court, rather than hiring a lawyer on a traditional retain- er basis. However, there is no need to fear. If the day-of-court private retainer lawyers are not permitted to be retained past that day, there is no fear lawyers will be searching for new files through the program. Further, there will not neces- sarily be one lawyer per litigant available under the day-of-court program. So, litigants would not be able to rely on the sys- tem as their sole source of legal representation. Finally, day-of- court lawyers will likely advise litigants to get more legal advice and some litigants may then go and hire counsel. is model will have the re- sult of more lawyers doing more work, not less. As with any new concept, the devil is in the details. Carefully draed limited- scope retainer agreements reflecting the type of court at- tendance can be prepared by lawyers in advance to address the narrow scope of the repre- sentation, thereby setting appro- priate client expectations and protecting against malpractice claims and complaints. Print- ers and laptops are portable so documents including an invoice can be produced immediately or e-mailed. Identification can be verified. Credit and debit card trans- actions can now be processed on a mobile device, so payment can be completed in real time. Some legal accounting so- ware is now mobile. Trust ac- counts will not be needed. Local experienced lawyers can join a day-of-court panel managed by a potential soware application. A minimum required time of four years at the bar practicing specifically family law litiga- tion will provide a minimum level of court experience to the litigant. At the same time, this will minimize the movement of duty counsel panel lawyers to the day-of-court private retainer panel, ensuring a continuance of legal representation for the low- to no-income litigants. Conflict checking for lawyers providing short-term and duty counsel services is not as strin- gent. However, day-of-court lawyers could do so through mobile access to their firm cli- ent database. ese are issues that can and will be worked out. On-demand day-of-court coun- sel is a revolutionary idea that provides true access to justice for the self-representing litigant at court while simultaneously creating large cost savings for government. is is a win-win situation. LT uStacy M. MacCormac is the past president of the Northum- berland County Law Associa- tion and has been a family law practitioner in Cobourg since 2004. Check out lawtimesnews.com for insight from our regular online columnists Monica Goyal discusses the latest gadgets and trends in legal technology in Bits & Bytes From trade deals to foreign investment, Patrick Gervais keeps you up to date on business issues in Trade Matters Darcy Merkur brings a plaintiff-side perspective on insurance matters in Personal Injury Law

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