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This week’s guest blogger is our 2017 Law Foundation Research Fellow, Nikki Gershbain. Nikki is the National Director of Pro Bono Students Canada, an organization that runs law student pro bono programs across Canada. A former family lawyer at Epstein Cole LLP, Nikki has a long history of working on Access to Justice, including serving on the Law Society’s Equity Advisory Group and co-directing the University of Toronto’s Middle-Income Access to Justice initiative.
In January, I took a leave as National Director of Pro Bono Students Canada to work full-time with the NSRLP to explore the concept of “legal coaching” as a new practice model in family law.
My research builds on previous studies and reports, and a trend toward “unbundled” services in family law. This is where a client pays a lawyer to help with discrete tasks, rather than their entire case. NSRLP launched the National Directory of Professionals Assisting SRLs last November to promote lawyers who offer “unbundling” and “legal coaching”. Similar provincial directories now exist in British Columbia and Alberta, reflecting the momentum toward unbundled services that is growing across the country.
My project is focused on building support within the legal community for the idea of legal coaching, which is a type of unbundling. While lawyers have been coaching clients informally for years, our present goal is to formalize, refine and promote this practice model. By this Fall, I will have developed a training program for family lawyers who are interested in becoming effective legal coaches, and building these services into their practice.
I believe the widespread availability of these services can expand access to the family justice system for large numbers of Ontarians, who would otherwise go without any legal advice or representation. Like unbundling, legal coaching is a model that can be adapted to many areas of law.
My preliminary research – which includes interviews with and survey data from family lawyers and policy-makers, and feedback from the public on the kinds of services that would be the most affordable and responsive to their needs – suggests that legal coaching is a form of unbundling that responds to the needs and preferences of legal consumers.
There seems to be considerable interest in this project from members of the family bar, and I have started receiving invitations from a number of legal organizations and associations, in Ontario and nationally, to present my findings and curriculum.
What is Legal Coaching?
If you have not yet heard of the concept of legal coaching, you are not alone. Few lawyers (and fewer members of the public) are familiar with this model, and only a handful of lawyers in Canada advertise themselves as legal coaches.
Legal coaching is a form of unbundling where a lawyer-coach works with the client to offer behind-the-scenes guidance. The coach provides the client with the strategies, knowledge and tools needed to advance their case as effectively as possible on their own, when they cannot afford to retain a lawyer full-time.
The term “coaching” to describe this type of assistance was coined by Dr. Julie Macfarlane in her groundbreaking 2013 National Study on SRLs. That study, and subsequent studies and reports, suggests that many members of the public are eager to find alternatives to full-service representation. Many Canadians are willing and able to purchase at least some legal services, even as they do most of the work on their legal matter on their own.
What is Unique About Legal Coaching?
Many lawyers practice unbundling and legal coaching simultaneously. However, my research leads me to believe that the concept of legal coaching is different from the legal profession’s general understanding of how unbundling works – which typically involves a discrete, one-off service performed solely by the lawyer, such as drafting pleadings, or writing up an agreement.
Because I believe legal coaching offers advantages that “traditional” unbundling does not, it is worth thinking about the ways it benefits clients who want some legal assistance, but cannot pay for full representation. Based on the many interviews I have conducted with family lawyers, and the preliminary results of my survey, I believe legal coaching is unique in at least four ways.
- The Client Does the Work
The main difference between unbundling and coaching is that the client, not the lawyer, is tasked with the work of the file. Just as a football coach does not get onto the field to score the touchdown, a legal coach is not there to perform tasks associated with the file.
While a traditional unbundled lawyer might, for example, draft the client’s claim, the role of the legal coach is to work behind the scenes, guiding the client as she does the drafting, as much as possible on her own, with feedback from the lawyer-coach.
- The Client Receives Procedural & Cultural Support
The second major difference is that, in addition to providing legal advice on the relevant law and the strengths and weaknesses of her case, the legal coach takes responsibility for a client’s need to understand legal procedure and the “culture” of the justice system. This means offering guidance on drafting, negotiation and advocacy, but also help navigating the process, and tips on courtroom etiquette and decorum.
Lawyers who offer unbundled legal services may also choose to assist their clients with these related matters. However, establishing the full scope of the service from the get go is a best practice, offering transparency to the client and a better understanding of the framework for the service.
- Continuity of Service is Preferred
Continuous service is more likely to produce faster and better outcomes for clients, but until the public is aware that they have the option of partial legal services, and until more lawyers offer them, this will be more of an ideal than a practice on the ground.
- The Lawyer and Client Form a Partnership
Finally, successful coaches will build a trusting partnership with their client. A team approach means the client will participate more fully than they would in a more traditional solicitor-client model.
Of course, some lawyers already aim to practice from a client-centred approach –working to maximize the client’s autonomy to the extent possible within a traditional framework. For the legal coach, however, providing clients with more control over their matters, encouraging them to be active partners, listening to them and having confidence in their abilities to make both moral and strategic judgments – these are the values that will be vital to the success of the relationship.
What are the Benefits of Legal Coaching?
While there is no one cure-all for the lack of access to family legal services, I believe legal coaching has great potential as an Access to Justice tool.
The lawyers I have interviewed and surveyed report numerous benefits for themselves from this model, including enhanced professional satisfaction and work-life balance, and expanded business opportunities.
Moving the Model Forward
In my view, there are two pre-conditions to the expansion of unbundling and legal coaching in family law: widespread public awareness of the availability of these services, and a massive ramp-up of the delivery of these services by the family bar.
Responsibility for the marketing, advertising and promotion of unbundling and coaching services cannot rest solely on the shoulders of individual family lawyers. The development of a professional culture in law that is conducive to offering innovative services requires concrete steps to be taken by government, legal institutions such as the Law Society, and other professional organizations.
In my next blog, I will describe some of the feedback I have received from family lawyers on the challenges and possibilities of the legal coaching model, and set out concrete ways in which all corners of the profession can help lead the way in promoting these services.