Lawyers have to come to grips with the prospect that they are a "luxury good" that may no longer be needed in the country's courtrooms as more litigants represent themselves, warns a leading Canadian legal publication.
The National, the magazine of the Canadian Bar Association, makes the bold assertion in an editorial, titled "Life after lawyers," published in the current edition.
The editorial focuses mainly on the growing number of people who are showing up in family courts to fight over their children and marriage breakdowns without hiring lawyers.
"There is reason to believe that lawyers will not be an essential part of the legal system in the future," writes editor Jordan Furlong, a lawyer and longtime tracker of legal trends. "Canadians are getting used to the idea that family justice is a lawyer-optional event."
The legal profession has been dwelling for a decade on how to "fix the problem" of self-represented litigants, but there are "two big elephants" in the courtroom that nobody is talking about, says the National.
The first is that out-of-reach legal fees are not going to drop as long as lawyers cling to "a self-regulated, protected marketplace." The other is that the last decade has shown that the courts are working "with or without lawyers' involvement," says the editorial.
Guy Joubert, vice-president of the 37,000-member bar association, said he suspects the editorial will invite debate among lawyers as they continue to seek ways to deal with an explosion in unrepresented litigants and the growing lack of access to justice.
"The article is provocative," said the Winnipeg lawyer. "If the editor gets people talking about this, it assists in the debate."
The National also carries a cover story on the chaos that lawyerless litigants are creating in family courts, including backlogged schedules, erosion of decorum and lopsided proceedings.
Some courts in the country have reported the number of self-represented litigants to be as high as 60 per cent, says the article.
The trend has been widely attributed to out-of-reach legal fees for all but the rich and the very poor, who can receive legal aid. Self-represented litigants are also motivated by anti-lawyer sentiment, a desire to personally challenge an ex-spouse in court, the availability of do-it-yourself products and a growing consumer movement.
To cope with an escalation in go-it-aloners, courts are scrambling to offer how-to guides, tip services, checklists and some are even setting up storefront kiosks that offer legal help. Judges, although required to be impartial, find they are forced to assist non-lawyers in navigating the system. The Internet also offers a vast array of information for self-represented litigants, known among lawyers as SRLs.
In recent years, several provinces have carried out studies on self-representation in court.
The Ontario Ministry of the Attorney General found that 46 per cent of family court-goers were unrepresented between 1998 and 2003.
In Nova Scotia, the Department of Justice's Self-Represented Litigants Project, which helps non-lawyers help themselves, conducted a study that found 40 per cent of those who showed up in court without lawyers said they did not want one.
A provincial report from Alberta last year found that self-represented litigants span income and education groups. About 60 to 65 per cent had at least some postsecondary education, said the government report, dispelling a perception that the do-it-yourself crowd has below-average literacy and comprehension levels.
The report also found that people involved in family law disputes account for about half of self-represented litigants, and half are involved in other civil matters, rather than criminal cases.