Earlier this week, the Government of British Columbia announced the publication of a report entitled Roads to Revival on legal aid. It was undertaken by Jamie Maclaren QC, a practising lawyer involved in pro bono and student legal advice programs. This makes BC the latest jurisdiction in a long line to provide an analysis of its legal aid provision. In this case, the report at least appears to be linked to increased funding. Thus, the context israther different from the UK’s rather forlorn recent post-implementation LASPO review. But the report raises some issues of international importance.
The first thing to say is that, should Mr Maclaren read this post, nothing in it should imply any personal criticism. He was appointed on 4 October 2018 to provide a ‘comprehensive review of legal aid service delivery models … [and] examine the effectiveness and efficiencies of current and potentially new models with a user-focus to help ensure optimal access to justice for British Columbians.’ He got twelve subcategories on which to report – ranging from the usual discussion of delivery models to ‘trends and challenges: geographical; cultural/demographic; technological; priorities; flexibility; resourcing; capacity; Models used in other jurisdictions, including staff lawyers; and Other topics the reviewer considers relevant.’ And that was not all, he had to provide ‘prioritized recommendations for potential improvements in legal aid service delivery on the basis of demand, resource-efficiencies and positive outcomes for citizens dealing with their legal matters.’
Ten effective weeks to deal with all this? To an outsider, the best explanation is that this was a box- checking exercise primarily designed to protect politicians from any blowback. But heaven knows if that is true. It would be scary if this was intended as a serious review of forward policy. You can tell that the good Mr Maclaren has been pushed for time. One of his recommendations is for a staff criminal law office. What goes around, comes around. I remember visiting one of these in Vancouver back in the 1990s before they were cut by the BC government at the time. He refers to a study of the Burnaby Public Defender Office as justification for staff model. This was published thirty-five years ago – in 1981 and regarded as venerable even by the 1990s. It is certainly, as Mr Maclaren notes, to be included within the category of ‘dust-gathering research’. The long running battles of staff v salaried lawyers have trampled the dust so well that true facts on relative costs are well buried. Later English research, which may raise methodological issues but which really has to be grappled with, indicated that public defenders were more expensive than salaried lawyers. You might want to dismiss this finding but the shallowest literature review has surely to raise it. All you can safely say is that the cost advantage of each type of provision is unclear – which, to be fair, is what the Burnaby report basically asserted.
Technology gets pretty scant treatment in the report – understandably given the unreasonable time constraint. So, the major recommendation is to ‘Develop and launch an online client portal to accept legal aid applications, to diagnose and treat clients’ legal problems, and to empower clients in the active management of their own cases.’ Cited as inspiration for this are LSS’s MyLawBC and the Civil Resolution Tribunal’s Solution Explorer. The commentary states: ‘Many legal aid users would benefit from a well-designed online client portal that could handle application intake, issue triage, problem solving by guided pathways, and active case management. A single entry point for legal aid services would allow applicants, legal advocates or other intermediaries to preload application information for quick and cost-efficient vetting by LSS staff. It would also enhance communication between clients and staff, and provide greater transparency to client service delivery.’
Mr Maclaren expands his point: ‘LSS’s MyLawBC and the Civil Resolution Tribunal’s Solution Explorer are two BC-born online systems that offer self-guided pathways to users. They are user-friendly artificial intelligence systems that employ simple question-and-answer tools to equip people with plain-language legal information and free self- help resources tailored to their needs. Both online dispute resolution platforms are internationally acclaimed for their cutting-edge technology.’ They are, it is true, internationally acclaimed: they do not currently depend much on artificial intelligence – though they both have aspirations to use it in the future. They are interactive and they do depend on guided pathways.
South of the Canadian border, the Legal Services Corporation assisted by Pew Charitable Trusts are developing the kind of Legal Navigator website that Mr Maclaren appears to have in mind. It is a pretty major undertaking which has already absorbed a $1m in aid from Microsoft and hefty subvention from the LSC and Pew. Over here and in the context of ODR, battle rages about the extent and nature of digital literacy. It may be that up to a quarter of the eligible legal aid population do not have the skills – cultural, technical or otherwise – to use digital. So, moving forward from two admittedly world-leading projects to a coherent and comprehensive policy on digital delivery raises questions, not least of staff and financial resources, that need to be coherently addressed. And considered in some detail.
If this report was just intended as a box-ticking exercise by politicians, then it is fine. If it is seriously intended to develop a forward strategy – in technology and other fields – then the most charitable assessment would be it has sketched issues to be considered in more detail and with more time Just don’t let anyone claim that it has taken the debate much further. And in the ten weeks at his disposal, this is no criticism of its author.