A Seamless Approach to Service Delivery in Legal Aid: Fulfilling a Promise or Maintaining a Myth?

1. Introduction

Restructuring and privatization have now characterized State action in Canada and the industrialized world for close to three decades, as government continuously (and in recent years, dramatically) reduces its role, cutting back on social spending and increasingly promoting private self reliance and charity as a response to poverty and inequality. Those policies, and the cuts mandated by them have had dramatic consequences, from a sharp increase in the gap between rich and poor, "haves" and "have nots", to unprecedented levels of homelessness, child poverty, and declining health for those "left behind". They have also contributed to extraordinary levels of corporate profit, private wealth and the first government budgetary surpluses in decades.[1] In the face of those surpluses, and the troubling reality of poverty in the midst of wealth, attention is now returning to social issues.

It has long been recognized that poverty not only generates very particular legal and social problems but that poor people suffer in many ways from their restricted access to justice, from reduced health to increased social conflict. Thus the provision of legal services to those who cannot afford to purchase them is clearly one of the social services which merits reconsideration in the aftermath of restructuring and recession. That reconsideration should not simply attempt to make the case for restoring funding levels however. Although most cuts and freezes were driven in part at least by budgetary concerns, and it is obvious that adequate funding is a prerequisite for any effective program, it is important to remember that serious questions about the efficacy of legal aid generally have been posed, and not just by neo-liberals justifying the guiding hand of the free market.[2] Indeed, that reconsideration must begin by recalling the ideas and ideals that shaped a system that disappointed both progressives and conservatives alike (albeit for different reasons).

Social policy thinking thirty and forty years ago was marked by a reformist spirit that was both radical and (perhaps naively) optimistic. In the USA the "War on Poverty", and, in Canada, the "Just Society" encouraged initiatives intended to eliminate, not just alleviate poverty. Legal services were seen to be part of the solution to a poverty that could be transformed[3] an ideal which in turn transformed legal aid and legal education.[4] The essential insight, was that traditional approaches to legal practice were not appropriate for all people. That is, traditional approaches to practice had been designed by and for those with money and power, in part at least to preserve their power and wealth. Poor and marginalized people who were left without any meaningful access to legal services at all, thus required assistance to achieve full participation and equality. That recognition in turn led to the development of enhanced legal aid in general, community legal clinics in particular, and to the development of the specialty of "poverty law" (primarily social assistance, housing, employment and immigration law). The model was intended to take a different approach to the legal problems of the poor. Rather than the "case by case" approach still used for many family law and most criminal cases, the community clinic model incorporated community education and development, law reform, and locally elected boards of directors and non lawyer "community legal workers" into a lawyer-based practice.

The model was most successful when it was implemented as intended. Which in practice means when it has actually been multidisciplinary and community based as it was in Canada in the law school based approach exemplified by clinics like Osgoode Hall's Parkdale Community Legal Services programme in Poverty law.[5] "Parkdale" actually was able to incorporate legal case work with community education, organizing and development, and law reform, in part because of the commitment of the law school to progressive lawyering, in part because of a strong community board, and in part because of the resource of 20 full-time law student case workers per semester. However this integrated, multi-faceted style of practice (which in many respects is what really good legal services always includes) has rarely existed outside of a law school setting except in theory. In the United States the "neighbourhood law office" system was hamstrung by limits on work of a "political" nature such as community organizing almost before these offices were established.[6] In Canada, few community legal clinics have been able to achieve this level of service, even when it is theoretically encouraged, as it is in Ontario.[7] Most legal aid clinics do not have the "luxury" that the work of 20 full time law students represents. Moreover, all clinics, including those based in law schools, are plagued by two seemingly irremediable problems:

  1. The case load of individual legal problems overwhelms all other approaches as problems are "legalized" (and connections and linkages to other resources are never made) and clinic lawyers are faced with an at times overwhelming volume of work;[8] and
  2. Legal aid has become bureaucratized, encouraging routine, efficient operations, not innovation and transformation.[9] As "poverty law" evolved into a specialty (like "social work"), it sustained itself in the sense that it became self referential and not devoted to eliminating itself. In the result, very limited progress has been made in addressing the root causes of the issues being "legalized".

These, and other failings and problems have not gone unnoticed.[10] However, along with the critique some suggestions for improvement have been generated, such as the intriguing suggestion by Douglas Ewart to redesign legal aid to make it an integral part of the justice system,[11] to a renewal of the principles that inspired (civil) legal aid when there was a clinic "movement" (as compared with a "system"), such as more community education,[12] and selecting cases and clients in a more politically informed and targeted fashion,[13] (ideas which have always been central to the Parkdale approach).[14] However no consensus like the one that created modern legal aid has emerged about how to achieve the "Just Society" promised so long ago, nor what role, if any, law and legal aid might play. It may be that there is no "one" way, or that all that is required is that the original vision actually get implemented.[15] What is clear is that in the face of the perceived "failure" of legal aid to achieve it initial promise, new or rejuvenated models face an obligation to demonstrate their efficacy at improving the circumstances of poor and marginalized women, men and children.

This paper attempts that reconsideration by examining legal aid from a social justice perspective, considering the history, structure, and approach of the community legal clinic as a vehicle for delivering civil (as in non-criminal) services in a way that improves the life chances and circumstances of its clients, and setting out some suggestions as to how that model might measure its successes. Some of the extensive literature is reviewed in Chapter 2., and in Chapter 3., the integrated, "seamless" approach exemplified by Parkdale Community Legal Services is described and a case study of its application set out. Chapter 4. offers suggestions for how to reconsider the delivery of legal services to low income communities, in particular, the federal role in that delivery.[16] The focus is on the delivery of civil legal aid; that is, legal services for matters other than criminal law, although people's legal problems do not neatly fit within constitutional compartments.[17] Finally, the need to measure the effectiveness of the model and to ensure that it keeps the promises made is considered. How to ensure that providing legal services to low income people actually improves their lives and life chances is an enduring challenge, and a very basic measure — population health and its enhancement — is suggested as an appropriate, minimum, basis for that task.