Note: This article was written in response to Charn, J. (2013). “Celebrating the “null” finding: Evidence-based strategies for improving access to legal services” Yale Law Journal, 122, 2206.
Charn takes an analytical approach in deconstructing the value of the right to counsel. Drawing on empirical studies of how litigants represented by lawyers fared in comparison to litigants with access to limited assistance and legal advice, Charn shows that access to justice is not always the same thing as access to a lawyer. She argues that the right to counsel movement and its messaging that lawyers are instrumental in achieving justice ignores what we have learned about consumer preferences and diversity in both subsidized and market-delivered legal services. She recalls how the “founders of government-funded civil legal services in the United States were not interested in a right to counsel and that they intentionally shaped the program to achieve substantive antipoverty goals rather than access goals.” While having a lawyer can be important and helpful in some situations and in varying capacities, conventional legal representation is not the only way lawyers can be useful and is often not even the most effective form of legal help. Furthermore, it is extremely important to address the underlying causes of these legal issues such as poverty, racism and overcriminalization. The law has not proven to be an effective model to solve these issues.
Charn’s conclusion is extremely relevant, especially in 2021’s social climate. Uprisings have been occurring globally over the past year with increased intensity. We saw protests in America, Canada, Chile, Bolivia, Nigeria, to name a few, as responses to state violence such as police killings, enacting oppressive laws or infringing basic human rights. In none of these instances do we see the law being the driving factor behind the social change being sought. This is akin to the neoliberal defunding of “class actions, legislative advocacy, and test cases aimed at producing systemic change in favour of legal services programs that helped people with their everyday legal problems.” In fact, change is being driven by masses of people protesting and uniting under a common cause. While lawyers certainly assist these movements, their contributions are not the crux. The reason for this, as Charn also highlights, is that people’s problems, legal or otherwise, are not lawyer-centred. As such, lawyers are often ill-equipped to address them. We can look locally to apply this. In 2020 and 2021, the Landlord and Tenant Board (LBT) heard thousands of eviction hearings across Ontario. Immense cruelty was shown as families were pushed out of their homes for falling behind during a pandemic. Tenants’ unions organized across the province to support people during this time through mutual aid, social support and eviction defense. Legal clinics also got involved and attended the virtual hearings to support tenants. The results were disastrous.
The provincial eviction moratorium did not bar landlords from filing eviction notices, and by the end of August, the LTB had 8,323 pending eviction applications. The LTB had about 2,500 online eviction-related hearings in November alone and over 4,500 for December. Thousands of people were evicted. The shift to an online-only hearing model has made it harder for tenants to present their circumstances or access legal advice. Lawyers struggled to effectively defend tenants from these evictions. This highlights the relevance of Charn’s reluctance to see lawyers as the solution to society’s problems. The results of these LTB hearings highlight how rigged these systems are against everyday people and by extension, the lawyers on their side. Only the cruelest for-profit system could attempt to process tens of thousands of evictions in a time of both public health and economic crisis. Underfunded legal services do not have the resources necessary to adequately address this situation. These socio-economic problems are complex; they simply cannot be resolved by access to lawyers. Instead of a right to a lawyer in an eviction hearing, how about a right not to be evicted during a pandemic? Or a right to housing in general? Rather than depending on lawyers or even self-educated community members to be on the frontlines defending against these issues, this article inspires us to address these problems from the root.
The takeaway from this is complex; the solution is deeper than simply affording people the right to a lawyer. The fact that poor and middle-class people are often in need of legal support and so often fail, even with assistance from a lawyer, symbolizes deeper problems within the system. Lawyers’ best opportunity to assist with these everyday legal problems people face is supporting people’s fight to eradicate these problems for society as a whole, not individual cases. There will never be enough lawyers and legal self-help options to prevent people from being unjustly evicted, so why not support people’s fights to make housing a right? Of course, lawyers are needed in the interim – structural change will not happen tomorrow. However, lawyers should be proactive in taking up these causes that challenge unjust and unfair systems. As Charn says, “While I do not doubt that skilled lawyers will be needed due to inherent legal complexity, if swaths of problems can be resolved effectively with less or even no lawyer input, then lawyer services can be triaged where we have evidence that they are needed and will make a difference. We must keep in mind that access to courts and lawyers is not identical to access to justice.” Justice is not having a professional defend you in an onerous process in efforts to keep your house, it is just being able to keep your house.