Access to justice in a COVID-19 world

The pandemic has triggered significant disruption in the legal industry. One area that lawyers are grappling with is how to make services more affordable and accessible to clients, says Toronto family law lawyer Gary Gottlieb.

In a climate of uncertainty where businesses, schools and daycares have been shuttered, many have lost jobs or been compelled to choose their children over a return to work, he says alternative fee arrangements must be offered.

“Creative ways to charge include flat-fee arrangements, lower hourly rates, charging for drafting services only and summary advice. Firms can also offer newer associates who charge less for drafting purposes and save the higher-priced work for the seasoned litigator,” says Gottlieb, whose practice focuses on high-conflict family law and child protection matters.

“At Gottlieb Law Firm, we have always offered clients flexible rates, depending on their income level. We also provide some services on a flat-fee basis, but there has to be a presumption that I’m able to determine what that’s truly worth.”

Alternative fee arrangements

In some cases, he says the firm charges flat fees for discrete projects, such as drafting a separation agreement or preparing court documents for a self-represented litigant.

“Some clients only need help with the paperwork and intend to carry on the litigation themselves. We also offer coaching services for those who want assistance with a particular aspect of their family law matter,” Gottlieb notes.

Unprecedented financial challenge

Amid all the uncertainty and economic fallout from the coronavirus crisis, Gottlieb says two things are clear: more people will be applying for legal aid, and the number of clients looking for short-term involvement of counsel will increase.

The MNP Consumer Debt Index, released in late March, found that about half of Canadians surveyed are on the brink of insolvency, saying they are $200 or less away from not being able to meet their debt obligations each month, reports the Financial Post.

Increase in self-represented litigants

The cost to access legal services is just one reason more people are opting to self-represent when they appear in court for family law issues, says Gottlieb, noting that statistics show upward of 60 per cent of litigants in family court represent themselves.

“The budgets of clients going through separation or divorce are cut in half compared to that of an intact family,” he says. “You now have to support two homes, separate grocery bills, two changes of clothes for the kids and transportation costs for moving kids between homes. To add legal bills on top of all that can be a challenge, especially during COVID-19 times.”

Cuts to legal aid

Another reason for the increase in self-represented litigants is that in 2019, the Legal Aid Ontario budget was cut by 30 per cent, or $133 million. Gottlieb says that even though the agency has “opened the floodgates” during the pandemic to deliver more certificates to applicants, it can be a gamble for lawyers to take on these cases. Noting recent reports of a significant deficit by Legal Aid, he says it is even more unclear if the agency will be able to sustain itself.

“The government should let us know whether this problem will be corrected or not. It is unconscionable to keep us in the dark and to have lawyers — who are kind enough to take legal aid certificates — struggle with the uncertainty of being paid. A well-funded legal aid system has always been a challenge. That shouldn’t be the case. If there is a commitment to legal aid, there should be a commitment to its proper funding, plain and simple.”

Before the budget cuts, family lawyers were paid for every case conference they attended. So, even though the hourly rate was lower than standard legal fees, many lawyers, including Gottlieb, willingly took on these cases to give back to the community and to help those most vulnerable.

“Now we are only paid for one case conference,” he says, despite the fact that most cases involve multiple court appearances. “That means the rest are done on a pro-bono basis. In essence, the government has chosen not to properly fund the legal aid system, so the number of people representing themselves has skyrocketed. That fuels litigation costs because unrepresented litigants take more judicial resources, are more difficult to settle with and are often unprepared, causing numerous delays.”

Each legal aid certificate includes a specific number of hours, and if lawyers go over the allotted hours, they don’t know if they will be paid for the additional time, Gottlieb explains.

“When we submit the bill, it’s at the discretion of an administrator as to whether they will pay for the extra hours,” he says.

Increased efficiency in court appearances

Gottlieb says the pandemic has forced some positive changes in the judicial system to ease the financial burden clients face. Court appearances, for instance, have become more efficient, with some taking place over the telephone or on Zoom. There are also fewer in-person attendances ordered now.

“Before COVID, we would be on a list of 25 cases being heard and would have to arrive at the court at 9:30 a.m. or 10 a.m. and wait for our case to be called. In some cases, it could be a half-day or more, and that time is charged to the client,” Gottlieb says. “Now, we’re given a specific time to call in for teleconferences or to show up for required in-person attendances. That will save clients money because they only have to pay for the time we’re in court.”

Tips to lower legal costs

Gottlieb says family law clients can help reduce costs in their legal matters in the following ways:

Communicate concisely: Each interaction with your lawyer adds to the cost of your case, so if you can lower the volume of emails or phone calls, your bill is reduced accordingly.

“Family law matters are very emotional, and often clients feel like they have to relay information to their lawyer in real time,” Gottlieb says. “It’s better for their bottom line to keep an ongoing record of developments and forward the relevant updates to their lawyer on a weekly basis. That way, if we need to schedule an appointment, we can address all the issues in one meeting, rather than separately over many emails or in several calls.”

Prepare and organize: Frequently, family law cases rely on evidence that comes from text messages, emails and social media posts. Organizing copies of relevant documentation in advance of a meeting with your lawyer will save you money in the long run.

“Often clients tell me they received a text from their ex, but they can’t locate it so while they’re in my office, they’re combing through their phone to try and find it,” Gottlieb notes. “When it comes to allegations of abuse, the court relies on evidence, so it’s important that clients organize any written or visual evidence to support those allegations.”

Hire a law clerk who works with a lawyer: Law clerks can handle administrative tasks, and their time is often less expensive. Law clerks who work with lawyers allow clients to save costs while ensuring they receive proper legal advice and direction.

“Law clerks can’t give legal advice, nor do they have the experience of a family lawyer in terms of sustaining an effective litigation strategy and work product,” Gottlieb says.

While law clerks have an important role to play, he cautions bargain seekers to be wary of hiring them to stand in the stead of family law lawyers.

“Would you consider hiring a dental assistant to give you a root canal? It’s important to choose the right professional for the job when the stakes are high, as they are in family law.”

Navigating mental health challenges in family law

Gottlieb says he walks each new client through the process of what to expect and encourages them “to become the client I need them to be.”

Emotional and mental health issues can further complicate the process for people, so it’s important to work with a lawyer who has some understanding of those issues, he says. Gottlieb keeps a copy of the DSM-5, the American Psychiatric Association’s manual for assessment and diagnosis of mental disorders, on his desk.

“It keeps me attuned to what a client or his/her spouse may be suffering with,” Gottlieb says. “It’s important to understand if someone is potentially a ‘high-conflict’ person who will increase litigation costs. If so, certain communication techniques can be employed to anticipate high-conflict responses, and to help position interactions to be less provocative. This requires skill that comes from training and many years of experience.

“You have to be the type of person who’s genuinely interested in the challenges people face, which I am. Many lawyers have no patience for anything other than a perfectly composed client.

“In many cases, you’re dealing with very complex emotional structures, and you have to be able to pick up on cues. They don’t teach you that in law school,” Gottlieb says.

Photo Credit: Andrey Popov via Adobe Stock