In Canada, access to the justice system is largely reserved for wealthier individuals and corporations. The poor have limited access through legal aid and poverty law clinics. However, the majority of Canadian citizens fall between those two extremes, unable to pay a lawyer to represent them but also not qualifying for free legal help.
Nowhere is this access to justice crisis felt more acutely than in the country’s family law courts, where over half of all litigants have no legal representation. The Action Committee on Access to Justice in Civil and Family Matters prioritized family law as most in need of changes to make it more accessible, fair and efficient. One of the committee’s recommendations was to regulate and promote limited scope retainers.
A limited scope retainer (LSR), as defined in many provincial Codes of Professional Conduct, “means the provision of legal services for part, but not all, of a client’s legal matter by agreement with the client.” The idea is that people in the middle-income bracket can afford to pay for some legal help so they should be able to do so to create fairer outcomes more quickly.
Lawyers have been offering LSRs on a small scale for years, but only since 2011 have law societies attempted to regulate and encourage these services as an access to justice measure. Even so, most people have never heard of LSRs. Lawyers themselves are divided on whether they help self-represented litigants or simply open up lawyers to greater risk of malpractice claims. It is too soon to know how much such services will relieve the pressure on family courts and self-represented litigants. Preliminary research suggests that ‘something is better than nothing’.
A Step-by-Step Guide for Lawyers Considering LSRs
Before a lawyer begins offering LSRs, they must give due consideration to the matter. To guard against malpractice claims, a lawyer should carefully review what types of service options and fee structures there are and then thoroughly prepare to provide the chosen services in an efficient yet competent manner.
Lawyers Who Should Not Offer LSRs
A lawyer should only offer LSRs on matters that they possess a considerable amount of expertise. In the Canadian Bar Association’s “The Limited Scope Retainer” resource, Anne L. Kirker, QC and Jennifer Blanchard advise:
Consider limited retainers only in cases within your competence. A lawyer must fully understand what issues may arise and what steps may be required in order to assess whether the LSR is advisable and to explain to the client the potential consequences of limited representation. You cannot reasonably discharge your professional obligations if you lack familiarity with the subject matter.
Clients Unsuitable for Limited Scope Retainers
Having a detailed written retainer helps both the lawyer and the client know what services the lawyer will and will not provide.It is important that lawyers offer LSRs only to those clients who can understand what is being done for them and what they must do for themselves (as well as the capability of fulfilling the latter). As a result, people with a low level of literacy, an intellectual disability or a poor grasp of either English or French are not suitable clients for LSRs.
Lawyers offering LSRs must also consider a potential client’s emotional state when deciding whether to provide the service. Family law matters, in particular, can be very emotional. A client in a great deal of distress may not be able to fully understand instructions and thus have difficulty managing matters. Their expectations may also be difficult to contain. “If you are concerned that the client won’t be receptive to your advice and willing to rein in their expectations, the LSR should be declined,” says Jeanette Fedorak, QC.
Matters Unsuited to Limited Scope Retainers
When a lawyer considers whether to provide legal services under a limited scope retainer, the lawyer must consider whether the limitation is reasonable in the circumstances. For example, some matters may be too complex to offer legal services pursuant to a limited scope retainer.
If a matter is or has a real potential of becoming too complex (a real possibility in some family law disputes) or is too technical, then a limited scope retainer will not be appropriate. A lawyer should only offer a full-service retainer.
In short, “unbundling can really only work for educated, articulate litigants in routine matters” as a 2000 Australian Law Reform Commission report judged.
Deciding What Services to Provide
Family law lawyers perform a myriad of tasks for their clients. Under the correct circumstances, it is possible to perform many of these tasks discretely. For example, a family law lawyer may choose to:
- draft or edit court documents
- draft or edit prenuptial, cohabitation and separation agreements
- calculate child and spousal support or the proper division of family property
- provide advice
- draft or edit speaking notes for court
- appear in court on a single matter
- provide behind-the-scenes mediation or negotiation support, or
- research and prepare a legal opinion.
Lawyers in Canada are divided on whether offering legal services under a LSR is a legitimate way of addressing the access to justice crisis in family law.When deciding what services to provide, a lawyer should make a list of all possible services they can offer on a limited scope basis. This list should be limited to those services the lawyer is experienced enough to provide competently and efficiently in this manner. To do otherwise would be not only unethical but also financially foolish. The lawyer should also consider what matters they feel are too complex to deal with on a limited scope basis. Not all lawyers will draw the line in the sand at the same place, so know where your own line is. Finally, consider how technology might be used to increase your efficiency and your potential client base.
Once a lawyer has determined what limited scope services they can reasonably offer, they next need to determine the price. Will a flat fee be charged or an hourly rate? If the former, how will the fee be determined? If the latter, will it be the lawyer’s regular rate or a discounted rate to align more with the means of a target market?
In the end, whether a lawyer decides to provide a limited scope service to a client must be determined on a case-by-case basis considering the complexity of the matter and the abilities of the potential client. Conducting a thorough initial interview is necessary to avoid future problems. If you decide not to provide unbundled services to a potential client, give them a detailed explanation of why not in writing. Keep a copy for your records.
Drafting a Limited Scope Retainer Agreement
When a lawyer agrees to take a client on a limited scope basis, it is imperative that the scope of the retainer is laid out clearly and precisely in writing. Lawyers offering LSRs may wish to draft a general LSR in advance and modify it as needed to fit the exact services being offered in any given case. One way to do this is with a checklist format.
Having a detailed written retainer helps both the lawyer and the client know what services the lawyer will and will not provide. The importance of having such a carefully delineated retainer cannot be overstated. In ABN Amro Bank of Canada v Gowling, Strathy & Henderson, the court made it clear that it will decide any ambiguity as to the scope of a retainer in favour of the client. Thus, a carefully drafted retainer that outlines precisely what the lawyer has agreed to do can prevent malpractice claims by delineating the lawyer’s duty of care.
Stay Within the Scope of the Retainer Agreement
A retainer agreement only works as long as the lawyer stays within the scope of the agreement. If the lawyer and the client decide to expand the scope of the services, put it in writing and amend the retainer agreement.
A lawyer should only offer LSRs on matters that they possess a considerable amount of expertise.A lawyer should not act in a way that would lead the client, another lawyer or the court to mistakenly believe that the lawyer is providing full-service representation when that is not the situation. The Alberta Rules of Court demand that a lawyer working on a limited scope retainer and appearing before the court must disclose the limited nature of their representation either verbally or in writing.
When the lawyer has fully rendered the agreed-upon service, they should give the client a Notice of Withdrawal form or termination letter so that the client understands that the lawyer’s work is done.
Lawyers in Canada are divided on whether offering legal services under a LSR is a legitimate way of addressing the access to justice crisis in family law. Some lawyers refuse to offer limited scope services, citing liability concerns as well as fears about low-quality service. Others wholeheartedly embrace the notion of LSRs, believing that some legal assistance is better than none at all.
Most of the lawyers who participated in the Alberta Limited Legal Services Project felt LSRs improved clients’ understanding of forms, pleadings and court procedures, and increased their confidence in the justice system, its processes and outcomes. The majority also felt it made legal services more affordable and prices more predictable. However, less than half the lawyers thought such services improved a client’s outcome or made the outcome more just, nor did they think hearings were shorter or more focused or fewer in number then when no assistance was provided. If this is truly the case, then LSRs are, at best, only a partial solution to the access to justice crisis of Canada’s ‘missing middle’.