President’s Blog
May 17, 2016

by David Crossin, QC 

I would like to return to a topic I wrote about a few months ago. A recent presentation to our Bencher table once again addressed a serious inequity in our justice system, one that disproportionately affects women involved in family law proceedings. It reminded me of the need for the Law Society, our members and the public to continue to work toward achieving a comfort zone concerning limited scope retainers.

Our table heard from Jennifer Muller. Many of you are familiar with Jennifer’s story concerning her soul-crushing odyssey through our justice system as a self-represented litigant. She had, of course, initially retained counsel but her savings were depleted in three months and she was quickly on her own. While there are a growing number of resources available online to assist the public, it is exceedingly challenging for individuals without legal training to put generalized information into any helpful context for their own case. Jennifer could not persuade a lawyer to be retained to consult with on a limited basis to assist her to navigate the process. She made dozens of calls to lawyers but was repeatedly turned down. She perceived her appearances in chambers (about 12 in all) were often viewed disparagingly by the court and the lawyer on the other side. After months of desperation, she was given the name of a lawyer through a friend. He was willing to meet with her every few weeks for several hours in the months leading up to the trial. The fact is, he was paid a fair and reasonable fee by Jennifer for this work that he took on from time to time to assist her. Without his services, she would not have been able to proceed with the case.

Despite the fact that most self-represented litigants seek out a limited retainer service, very few self-represented litigants are successful at finding anyone who will provide it. It is a crisis. The numbers of individuals representing themselves in Provincial Court outnumber those represented by legal counsel. As of 2011 (the most recent statistics available), in proceedings in B.C. under the Family Law Act, 57 per cent of parties were self-represented litigants.

I mentioned in my previous blog that in 2008 the Law Society developed a policy framework that allows lawyers to provide advice on isolated aspects of a matter. In addition, changes were made in 2013 to the Code of Professional Conduct for BC addressing concerns lawyers may have about limited scope retainers. Despite the provisions in the Code aimed at facilitating limited scope representation, lawyers remain reluctant to offer the service. As someone commented at the April Benchers’ meeting, “the door was opened but lawyers aren’t going through it.” Those who do offer limited scope retainers appear to do it on an ad hoc basis and very few advertise these services. This makes it very difficult for clients to find lawyers when they need them.

There is a particular gap in limited scope retainers to support families who choose to use mediation to resolve their family disputes. Given that the Family Law Act strongly encourages families to use “out of court methods,” more legal support is required. The Access to Legal Services Committee at the Law Society of British Columbia will be addressing these issues in a more robust way this year.

In addition, the Family Legal Services Unbundling Project, administered by Mediate BC, and supported by the BC Family Justice Innovation Lab, are seeking to encourage more family lawyers to offer unbundled legal services to support families using mediation. Various business models will be explored in attempting to find that balance between affordability for families and financial sustainability for lawyers. While the project focuses on mediation-related unbundled legal services, there will be much learning about unbundled legal services in general. The goal is to increase access to family lawyers providing unbundled services by, in part, creating a list or roster of family lawyers willing and well equipped to provide unbundled services.

The work of Mediate BC’s Family Legal Services Unbundling Project and the Law Society’s Access to Legal Services Committee has the potential to address a large problem. I urge all lawyers to give serious thought to learning about and offering limited scope retainers.

Below are some resources that will help lawyers better appreciate the issues.

A one-hour CLE tutorial on limited scope retainers

Practice advice published in Benchers’ Bulletin (see “Limited Scope Retainer Rules,” p. 15)

The 2008 report of the Unbundling of Legal Services Task Force