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Dispatches from the family law sector: Limited Scope Retainer | Anita Lerek

Thursday, July 04, 2019 @ 9:12 AM | By Anita Lerek


Anita Lerek %>
Anita Lerek
According to York University law professor, Trevor Farrow, “Almost half (48.4 per cent) of Canadians over 18 will experience at least one civil or family justice problem over any given three-year period.” (Everyday Legal Problems and the Cost of Justice in Canada: Overview Report.)

The family law bar has been a leader in providing access to justice to those in need, who do not qualify for legal aid, cannot afford legal representation for their entire matter, or might otherwise choose to represent themselves. Access is being provided through the use of the limited scope retainer (LSR) model. This occurs when a user hires a family law lawyer to complete specific tasks and then takes responsibility for handling the rest of the legal matter themselves.

Examples of limited-scope family law services include:

  • The initial consultation meeting;
  • Drafting court documents;
  • Providing legal advice regarding the substantive legal issues;
  • Appearing in court for one event or appearing with a client at a mediation session;
  • Providing independent legal advice on a proposed settlement;
  • Drafting an agreement;
  • Legal coaching on process, strategy, negotiation or participation in court.

Legal coaching is a key part of the new access tool kit. Here’s how the recently launched web hub, Ontario Family Law Limited Scope Services Project (FLLSSP) puts it: “In a traditional practice, the lawyer drives the ‘legal bus’ while the client rides as a passenger. With legal coaching, the client drives the ‘legal bus’ with the lawyer as the ‘GPS/navigation system.’ ”

This new working relationship or partnership has excellent aspirations of giving vulnerable users access to the justice system to resolve family law matters economically, flexibly and with dignity.

However, the LSR model represents a major disruption to the traditional lawyer-client relationship. It calls on lawyers to give up control and on clients to take control. And there’s the rub. This relationship is not for all lawyers or users, says Sarnia lawyer and mediator, Janet Whitehead, who is a member of the FLLSSP Steering Committee.

Lawyers steeped in the values of file management may not feel comfortable with the new partnership, given the huge knowledge and training gaps existing between the two parties. Lawyers may not feel up to the seemingly overwhelming task of coaching essential content, process, documentation and strategy into a family law litigant.

As for the legal users — many of them financially and informationally vulnerable — they do not view the justice system as fair, accessible or reflective of them or their needs. How can these outliers be expected to rise to the confidence level required to suddenly assume responsibility for the carriage of their cases, for the sage division of labour with a lawyer, and for the strategic content and process mastery needed to stickhandle their issues through the justice system, albeit with the sporadic support of counsel?  

Given the spotty nature of the limited-scope retainer, there is a great need to clearly itemize who does what in order to avoid confusion. This can be a daunting task for clients, who don’t know what they don’t know. This is in contrast to the full retainer situation where the lawyer does everything and then submits a whopping bill. The FLLSS site provides a helpful template.

There is some grumbling between LSR clients and lawyers. Heather Hui-Litwin, co-founder of Self-Rep Navigators, follows up with clients who have used her roster of lawyers. She says: “Some clients tell me that their LSR lawyers gave them little value for a pricey consultation. To a client, whether you quote $300/hour or the equivalent of $5 per minute, these rates can lead a client to huge expectations. At this rate, they are expecting significantly valuable advice, which will be truly effective towards their litigation success. And for many lawyers who are charging beyond that, they are expecting practically a miracle to be performed!”

At these early stages, there are a lot of incomplete passes between lawyers and clients. Many self-represented litigants are worn down by an arcane legal system not built for them. And lawyers are in no way trained to deal with the loosening of the legal rules of play. The ensuing personality dynamics between individual players often suffer. A good dose of understanding is prescribed for both sides.

The good news is that LSR is here to stay.

The court system has borne the burden of a growing body of unmonied, unrepresented and legally uninitiated litigants. The courts have over the years publicized the crisis and have worked toward solutions. The FLLSSP is an example of partnership between bench and bar. The provincial government has been lagging behind, especially with the recent draconian legal aid cuts and the threat of cutting off funding to Pro Bono Ontario, now deferred for one year.

There is a growing consensus for the need for access to justice for the majority and not just for the monied minority.

There is a growing group of lawyers, jurists and academics who passionately wish to help self-represented litigants. Advocacy groups such as the National Self-Represented Litigants Project and Pro Bono Ontario provide valuable online and phone-in legal resources,

Access to justice starts with access to lawyers. The organizations below offer access to free legal information and to lawyers willing to represent and coach on a new, flexible basis.

  • Family Law Limited Scope Services Project (FLLSSP).
  • Self-Rep Navigators.
  • Planet-Legal, of which the author is a founder

This is the second article in a series. Read part one: The empathetic lawyer and client retention.

Anita Lerek, a lawyer and long-serving legal recruiter, is the president and founder of planet-legal.com, a legal hub/marketplace offering quick and new ways for lawyers and lawyers, and lawyers and clients, to find each other. 
 
Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Richard Skinulis at Richard.Skinulis@lexisnexis.ca or call 437- 828-6772.