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`Emerging Technological Solutions to Access to Justice Problems: Opportunities and Risks of
`Mobile and Web-based Apps
`
`Knowledge Synthesis Report
`Submitted to: Social Sciences and Humanities Research Council
`October 13, 2016
`
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`
`Jena McGill
`Assistant Professor
`Principal Investigator
`
`Amy Salyzyn
`Assistant Professor
`Co-Investigator
`
`Suzanne Bouclin
`Associate Professor
`Co-Investigator
`
`Karin Galldin
`LLM Candidate
`Research Assistant
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`
`Faculty of Law
`University of Ottawa
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`Table of Contents
`
`Key Messages ............................................................................................................................................. 1
`
`Executive Summary..................................................................................................................................... 2
`
`Key Findings................................................................................................................................................. 5
`
`Context..................................................................................................................................................... 5
`
`Implications.............................................................................................................................................. 7
`
`Approach and Limitations ........................................................................................................................ 8
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`Results...................................................................................................................................................... 9
`
`Inventory and Taxonomy of A2J Apps ............................................................................................ 9
`
`Policy Issues: Opportunities and Risks .......................................................................................... 14
`
`Best Practices for A2J Apps........................................................................................................... 24
`
`Knowledge Gaps and Future Research ......................................................................................... 27
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`Knowledge Mobilization ........................................................................................................................... 28
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`Conclusion ................................................................................................................................................. 29
`
`Endnotes.................................................................................................................................................... 30
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`Appendix A: Complete Bibliography......................................................................................................... 39
`
`Appendix B: Survey of Law Societies’ Approaches to A2J Apps
`
`........................................................... 56
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`Appendix C: Canadian Apps ...................................................................................................................... 57
`
`Appendix D: American Apps ..................................................................................................................... 64
`
`Appendix E: List of Law School Courses.................................................................................................. 102
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`KEY MESSAGES
`
`
`Canadians experience multiple barriers to accessing justice, including financial constraints,
`psychological barriers, informational obstacles and physical barriers. Members of marginalized
`and equality-seeking communities, who are more likely to face multiple justiciable problems as
`once, experience these barriers acutely. Apps that purport to facilitate access to justice by
`providing assistance with legal tasks are increasingly being deployed in the legal services arena.
`This Knowledge Synthesis develops the groundwork for a nuanced analysis of the social,
`political and legal implications of access to justice apps, canvassing the risks and opportunities
`inherent in the use of apps in the legal context, considering existing best practice guidance
`relevant to legal apps and proposing future policy and research directions in this area.
`
`
`• There is virtually no Canada-specific scholarly work, regulatory consideration or policy
`initiatives addressing legal apps generally, or access to justice-enhancing apps in
`particular. While the American experience may be instructive, and there are lessons to
`be learned from app use in comparable disciplines, like the health field, a Canada-
`specific approach to legal apps is necessary.
`
`• Apps present a range of opportunities for improving access to justice including:
`mitigating the financial, psychological, informational and physical barriers associated
`with traditional legal services; addressing needs beyond conventional legal services;
`providing insight into interrelated legal needs and modernizing public legal education.
`Using apps to address access to justice needs also carries significant risks, including:
`privacy and security issues, the propagation of the digital divide and unequal access to
`justice; regulatory issues connected to the unauthorized practice of law; uncertain
`reliability of the information provided; and skewing the access to justice debate away
`from the ongoing need for structural change.
`
`
`
`
`
`
`
`• There is no best practice guidance specific to access to justice enhancing apps. General
`guidance on best practices in app development from sources including the Privacy
`Commissioner on issues of privacy and security and the World Wide Web Consortium on
`accessibility for persons with disabilities should inform best practices for legal apps.
`Guidelines on health care apps promulgated by the Canadian Medical Association are
`highly transferable and may provide a useful starting point for the creation of parallel
`guidelines in the legal context.
`
`• Future research is urgently required to gain a more complete picture of the state of
`access to justice apps in Canada and to assess the potential for these apps to contribute
`to improving the state of access to justice for Canadians. More information is needed on
`topics including: the demographics of app users and their usage patterns; whether
`access to justice outcomes are in fact improved through the use of apps; and, the
`regulatory options available and the risks and benefits of regulation of apps in this area.
`
`1
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`EXECUTIVE SUMMARY
`
`
`Context
`
`There is a widely acknowledged access to justice crisis in Canada. Many Canadians do not have
`access to legal information, lawyers, courts and the broader conditions of legal empowerment
`needed to resolve legal issues. Studies indicate that individuals experience a variety of
`interconnected barriers to accessing the justice system, including: financial constraints
`connected primarily to the significant costs associated with hiring a lawyer; psychological
`barriers including fear, embarrassment and stress in relation to pursuing or defending legal
`rights; informational obstacles including a lack of knowledge about the legal system and
`available legal support services; and physical impediments linked to the unavailability of local
`legal services in many rural and remote communities. These barriers are acutely experienced by
`members of marginalized and equality-seeking communities, such as persons of Aboriginal
`ancestry, members of visible minority groups, persons with disabilities and those who receive
`social assistance, who are all more likely to face multiple justiciable problems as once.
`
`While strategies targeting the access to justice crisis in Canada have historically focused on
`refining existing court processes and increasing access to legal representation, technology is
`increasingly acknowledged as a means of creating new pathways to justice. To that end, mobile
`and web-based apps intended to assist individuals with legal tasks are now being deployed in
`the legal services environment. Although these apps are recent additions to the access to
`justice world, they are already changing the ways that Canadians interact with the legal system.
`This Knowledge Synthesis develops the groundwork for a nuanced analysis of the social,
`political and legal implications of access to justice apps, canvassing the risks and opportunities
`inherent in the use of apps in the legal context, considering existing best practice guidance
`relevant to legal apps and proposing future research directions on this topic.
`
`Findings
`
`
`1. Inventory of Access to Justice Apps
`
`We created a comprehensive inventory of access to justice apps in Canada and a parallel
`inventory of apps in the United States. We coded these inventories according to: (1)
`developer(s); (2) intended users; (3) type(s) of law the app engages; (4) brief description of the
`app; (5) cost accessibility; and (6) function(s) served by app (i.e., providing legal information,
`offering administrative information, document/form creation, evidence collection, legal advice,
`self-help). These inventories illuminate three trends about access to justice apps.
`
`First, private developers are responsible for most access to justice apps. However, Canadian
`government actors and public bodies have recently increased their involvement in promoting
`technological solutions to access to justice issues through, for example, public competitions like
`the Ontario Access to Justice Challenge. Law schools in both Canada and the United States are
`also leading innovators in the development of access to justice apps.
`
`
`
`2
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`Second, access to justice apps target three distinct end-users: (1) lawyers; (2) the general
`public; and (3) non-lawyer service providers. Apps targeting lawyers are designed to improve
`the efficiency of legal service delivery, often through streamlining practice management issues
`or litigation tasks. Apps for the general public focus on making legal services or information
`easier to access. A significant number of these apps shift the way that individuals interact with
`the legal system by allowing users to bypass the need to retain a lawyer or minimizing the
`amount of time a lawyer needs to spend on a legal issue. Examples include apps that: provide
`legal and procedural information; allow users to create legal documents including contracts and
`wills; automate the common steps of a legal transaction like a divorce; and, assist with legal
`research. The final category targets service providers like social workers by providing a tool for
`them to conduct a basic “legal screening” for their clients.
`
`Third, the majority of public-facing apps are available for free, though there may be hidden
`costs associated with upgrades or advanced features. Apps aimed at lawyers or that connect a
`user to legal advice are more likely to cost money than other kinds of apps.
`
`
`2. Risks and Benefits of Access to Justice Apps
`
`
`Due to the marked lack of available information and analysis on access to justice apps, it is
`impossible to draw firm conclusions about the potential for apps to revolutionize the legal
`arena. However, we identified six preliminary opportunities presented by apps to improve
`access to justice for Canadians.
`
`
`• Mitigating financial barriers: For example, apps that allow individuals to generate legal
`documents without assistance or with reduced assistance from a lawyer are likely to
`reduce the costs associated with creating basic legal agreements.
`• Mitigating psychological and informational barriers: Apps can help demystify the law
`and legal institutions by providing new opportunities for the public to educate
`themselves about the law, contributing to an increase in client empowerment.
`• Mitigating physical barriers: Assuming a user has access to the internet, apps allow for
`legal information to be accessed on an anytime, anywhere basis. This flexibility can
`improve access for those in rural and remote communities who may not have easy
`access to a local lawyer.
`• Addressing needs beyond conventional legal services: Some legal self-help apps provide
`tools beyond those generally offered by lawyers.
`• Developing big data and insight: The data collected by apps could be used to gain insight
`on connections between legal issues, allowing service providers to better address
`interconnected client needs.
`• Modernizing public legal education: Apps encourage students to communicate legal
`information in an accessible way, to think about the responsiveness of law to real-world
`legal problems, and to situate the role of lawyers in a modernized, technological world.
`
`
`We also addressed five risks apparent in the use of apps to address access to justice issues.
`
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`3
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`• Privacy and security issues: Information collected by apps could be vulnerable to
`collection and misuse by unauthorized third parties.
`• Uneven or unequal access to justice: Meaningful implementation of technologically
`driven access to justice initiatives requires attention to the socio-economic, geographic
`and digital literacy-related barriers to accessing technology. Otherwise apps will
`contribute to further entrenching the digital divide.
`• Regulatory issues: Non-lawyers can offer legal information, but not legal advice. The line
`between information and advice is notoriously murky. Because most apps operate
`without regulatory oversight, there is concern that some apps could amount to the
`unauthorized practice of law.
`• Uncertain reliability of information: Apps must provide up-to-date, accurate information
`that is validated and sustained over time. Yet, because apps are unregulated, there is no
`way for users to confirm that the information provided by an app is reliable.
`• Skewing the access to justice debate: Apps may lessen the general sense of urgency
`about the access to justice crisis in Canada, and could distract from the ongoing need to
`improve the affordability and accessibility of real-time legal and court services.
`
`3. Best Practices for Access to Justice Apps
`
`
`There is no best practice guidance tailored to apps operating in the legal context. However,
`existing guidance on the development of mobile and web-based technologies more broadly is
`worth consideration. For example, on issues of privacy and security, the Federal Privacy
`Commissioner has published a best practices document outlining privacy practices for mobile
`apps, which includes reference to how Canada’s federal and provincial privacy legislation
`applies to the collection, use and disclosure of personal information retained by apps. Similarly,
`because Ontario mandates that publicly available information be accessible for persons with
`disabilities, developers of some apps must ensure that their apps comply with the guidelines
`developed by the World Wide Web Consortium, an international standards organization for the
`Internet. Finally, the specific guidelines on mobile health apps developed by the Canadian
`Medical Association are transferable in large part to the legal context, and could provide a
`starting point for the creation of a parallel document for legal service providers.
`
`4. Knowledge Gaps
`
`
`There are significant knowledge gaps on access to justice apps. To gain a more complete picture
`of the state of these technologies and their potential to improve access to justice outcomes for
`Canadians, more information must be gathered on: (1) the backgrounds, expertise and
`motivations of app developers; (2) the demographics of app users and their usage patterns; (3)
`whether apps actually facilitate or improve access to justice outcomes for users – and if so, are
`there differentials in these users’ improved access to justice; (4) which access to justice needs
`remain unmet by apps; (5) the risks posed by access to justice apps, particularly in relation to
`privacy issues, the reliability of legal information provided and uneven access to apps; (6)
`regulatory options and the costs and benefits of regulation in the app context; and (7) the ways
`in which apps are transforming legal practice and the lawyer-client relationship.
`
`
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`4
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`KEY FINDINGS
`
`
`A. Context
`
`1. The Access to Justice Crisis in Canada
`
`There is a crisis in access to justice in Canada. While there is no single, agreed upon
`definition of access to justice, in this Knowledge Synthesis we adopt a broad and purposive view
`of the concept as including more than simple access to legal practitioners or courts. We
`understand and use the term access to justice to include conditions of legal empowerment for
`all and a justice system that is responsive to a broad range of individuals’ needs. As the
`Canadian Bar Association’s Reaching Equal Justice report describes, access to justice
`encapsulates “a truly equal justice system, one that provides meaningful and effective access to
`all, taking into account the diverse lives that people live.”1
`
`Despite our expansive view of access to justice, most empirical research by legal scholars
`and policy-makers focuses on access to the courts and to lawyers. For instance, a comparative
`study found that Canada lags behind similarly situated “developed” nations in ensuring that all
`citizens can effectively access our justice system.2 Other studies have concluded that Canadians
`are losing confidence in the justice system.3 This lack of confidence may be one of the reasons
`that only 7% of respondents in a recent national survey reported appearing before courts or
`tribunals to deal with a legal problem and only 19% reported consulting a lawyer.4 This survey
`indicated that individuals are more likely to use the internet (33%), speak with friends and
`family (61%) or deal directly with the other party (75%) in attempting to resolve legal issues.5
`
`A lack of confidence in the justice system and in lawyers is in no small part a result of their
`real and perceived inaccessibility, often discussed in terms of financial constraints. The average
`adult Canadian with a legal issue, for instance, will spend approximately $6,100 to have it
`resolved.6 This is particularly troublesome given that almost half of Canadians will experience a
`legal problem over a three-year period.7 Moreover, individuals experiencing certain life events,
`like divorce, may find that retaining a lawyer is far beyond their financial means. A 2015 survey
`
`of Canadian lawyers found the legal fees charged for a contested divorce range from $6,145 to
`$87,974.8 Given these costs, it is not surprising that an “extraordinary” number of individuals
`
`are now self-represented in Canadian courts.9 Although legal aid programs are in place across
`Canada, the financial support provided by legal aid does not meet the legal needs of many
`Canadians. Not only is legal aid variably funded across the country, the types of matters that
`legal aid programs fund often focus primarily on relatively serious criminal law issues.10
`
`
`In addition to financial constraints, Canadian studies also report that individuals experience
`multiple psychological and informational barriers to accessing justice, including: (1) a lack of
`knowledge about the legal system and the resources available to assist members of the public
`in accessing the legal system; (2) fear, embarrassment and stress in relation to pursuing or
`defending legal rights; and (3) concerns about jeopardizing privacy.11 These barriers are
`experienced acutely by members of marginalized and equality-seeking communities. The cost
`
`5
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`of accessing justice, for example, is uniquely burdensome for persons of Aboriginal ancestry,
`members of visible minority groups, persons with disabilities and persons who receive social
`assistance, who are all more likely to face multiple justiciable problems at once.12 It is well
`documented that homeless individuals – a heterogeneous mix of people who are otherwise
`marginalized in the legal system for reasons of race, social class, disability, and sexual
`orientation/identity – experience “a gamut of unresolved legal issues.”13 As summarized in the
`Canadian Bar Association’s Reaching Equal Justice Report, “legal problems tend to ‘cluster’,
`multiply, and have an additive effect and this pattern of cascading problems disproportionately
`impacts people living in marginalized conditions.”14
`
`
`Physical barriers also impact access to justice. For example, in one Ontario study,
`“participants identified distance as the number one barrier to obtaining legal information and
`services in rural or remote areas of the province.”15 In this study, “[l]egal service providers
`spoke about their rural clients walking an hour or more, or hitchhiking, to keep appointments
`with legal clinics or to attend administrative or court proceedings.”16 The study further reported
`that financial, informational and psychological barriers to accessing justice may be pronounced
`in rural settings due to disproportionately high rates of poverty, higher cost services due to
`reduced economies of scale, possible “‘cultural barrier[s]’ between people in rural communities
`and service providers located in cities”, and a lack of public awareness of available services.17
`Supply gaps in rural and remote areas have also been identified. For example, a 2015 report
`concluded that individuals navigating family law issues in rural and remote contexts are under-
`serviced due to a lack of lawyers, and a belief that problems should be dealt with inside the
`family structure.18
`
`Marginalized and equality-seeking groups may also face exacerbated barriers in rural and
`remote contexts. Persons of Aboriginal ancestry in remote regions face difficulties in accessing
`appropriate legal services in part due to generalized ignorance about the history and position of
`their unique communities and disproportionately high rates of poverty.19 The lack of specialty
`services in rural communities may also have a detrimental effect on the legal needs of youth,
`elderly, and people with disabilities.20 Rural women experiencing intimate partner violence face
`particular challenges in navigating conflicts and maintaining confidentiality in close-knit
`communities where the number of available lawyers may be small. 21 In such circumstances,
`rural women may find it difficult to see a lawyer without childcare or adequate transportation
`to travel outside their communities.22
`
`
`2. Towards Technological Solutions to Access to Justice Problems: A2J Apps
`
`
`Discussions about solving the access to justice crisis have historically focused on refining
`established court processes and increasing access to legal representation.23 More recently,
`however, scholars and policy-makers have recognized that meaningful access to justice requires
`more than simply access to courts and lawyers.24 Technology is now a broadly acknowledged
`means of creating new pathways to justice.25
`
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`In 2015, Chief Justice Beverley McLachlin implored the legal profession to “accept the idea
`of change”, including the reality that some tasks that have been traditionally performed by
`lawyers can now be more effectively performed through technological means.26 There is also
`significant interest internationally in using technological means to facilitate access to justice.
`For example, included among the recommendations in the American Bar Association’s 2016
`Report on the Future of Legal Services in the United States is a recommendation that state bar
`organizations “explore how legal services are delivered by entities that employ new
`technologies and internet-based platforms and then assess the benefits and risks to the public
`associated with those services.”27
`
`One technology increasingly deployed in the legal services environment is mobile and web-
`based applications (“apps”). In simple terms, “a mobile app is a software application designed
`to run on mobile devices such as smartphones and tablet computers.”28 Mobile apps may come
`“preloaded” on such devices or may be available for users to download through app stores like
`“Google Play” or Apple’s “App Store.”29 In contrast to a mobile app, a web-based app or “web
`application” is hosted on the web and accessed from a browser on a computer or mobile
`device.30 Although “the general distinction between an interactive web site of any kind and a
`web application is unclear,”31 in this Knowledge Synthesis we adopt an inclusive definition of
`access to justice apps (A2J apps) as including both mobile and web-based resources that
`purport to assist individuals with a specific legal task or set of tasks.32
`
`Canadians use apps widely. For example, a 2014 study conducted by the Information and
`Communications Technology Council found that there are roughly 18 million app users in
`Canada.33 Notwithstanding this extensive use, we have not located any comprehensive data
`detailing who uses apps in Canada and how those apps are used. Research by private
`technology company Catalyst reveals that “app hoarding” on smartphones is decreasing –
`meaning that Canadians are keeping fewer and fewer apps on their phone.34 In 2014, for
`example, the average Canadian had just under 27 apps on their phone, while in 2016 this
`number fell to 18.35 The Catalyst study also found that “[m]onthly app download behavior
`increased year over year, but so did monthly app uninstall behavior, indicating a fickleness
`among the general population towards apps, especially apps that go unused.”36 It is unclear
`whether these general trends include or are reflective of legal apps. It is worth noting that the
`Catalyst study found that app usage in another specialized sector – health—is on the rise: 30%
`surveyed had one or two health apps on their smartphone and 7% had three or more.37
`
`B. Implications
`
`The information contained in this Knowledge Synthesis will assist government, lawyer
`regulators, legal service providers, app developers, and legal educators to better understand
`the potential benefits and limitations of using apps as a means to address Canada’s ongoing
`access to justice crisis. The analysis contained herein is timely as, although A2J apps “are in
`their nascent stage of development and usage”, these technologies are already beginning to
`change the ways that Canadians interact with law.38 There is a risk that discussions about A2J
`apps will follow the pattern of many early discussions about access to justice and technology
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`7
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`generally and will “reflect[] an overly narrow, instrumentalist view of technology that fails to
`adequately take account of possible broader political and social implications as well as this
`technology’s transformative potential.”39 This Knowledge Synthesis seeks to avoid this risk by
`developing the foundation for a nuanced analysis of the social, political and legal implications of
`access to justice apps, canvassing the risks and opportunities inherent in the use of apps in the
`legal context, considering existing best practice guidance relevant to legal apps and proposing
`future research directions on this topic.
`
`C. Approach and Limitations
`
`For this Knowledge Synthesis, we employed a variety of research techniques, particularly
`conventional subject and citation searching in the following areas:
`
`
`1. Mobile app stores to identify and gather information about relevant apps;
`2. Google searches to identify and gather information about mobile apps and web-
`based apps;
`3. Scholarly journals and monographs within relevant disciplines, including law, media
`studies, computer science and technology;
`4. Grey literature, including law school curricula and legal trade publications;
`5. Newspapers and popular media sources including blogs; and
`6. Policy reports and documents from government agencies, non-governmental
`organizations and professional bodies.
`
`A complete bibliography of works consulted is included as Appendix A. Additionally, we
`conducted a short survey of all Canadian law societies on legal apps. The survey questions are
`included as Appendix B, below, and results from this survey are incorporated into the Results,
`below.
`
`
`Our preliminary research revealed virtually no Canada-specific scholarly work, regulatory
`consideration or policy initiatives addressing legal apps generally, or A2J apps in particular. We
`thus expanded our research to include: (1) American sources on A2J apps; and (2) research on
`health-related apps, including evidence-based apps for use by health professionals and health
`and fitness apps designed for use by the general population.40 Health apps are a meaningful
`comparator, as the legal and health environments share many key features, including the
`involvement of experts delivering specialized services in a self-regulated environment, and
`privacy and security concerns related to sensitive patient or client information.
`
`This Knowledge Synthesis is subject to some limitations. First, the research was conducted
`entirely in English and lacks sufficient engagement with scholarship published in other
`languages, including French. Future research may be done in collaboration with colleagues from
`French-speaking Canada. Second, much of our research draws from the American experience in
`part because there are significantly fewer A2J apps in Canada, and accordingly, less associated
`literature (see inventory of Canada apps, Appendix C, versus inventory of American apps,
`Appendix D). While the American experience is instructive, it will be necessary to develop a
`
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`Canada-specific approach to A2J apps and to addressing the opportunities and risks of these
`apps, discussed below. Third, while the research at the core of this Knowledge Synthesis is
`comprehensive, it is by no means exhaustive. For example, our work here is limited to the
`North American experience with A2J apps, but there are many apps grappling with access to
`justice issues internationally and in other jurisdictions.41 Similarly, in creating our inventories of
`A2J apps, we focused primarily on those apps available through mobile apps stores and simple
`Google searches. It is probable that there are additional apps not located through these
`searches that could be included in our research.
`
`D. Results
`
`1. Inventory and Taxonomy of A2J Apps
`
`This Knowledge Synthesis was motivated in part by the lack of consolidated data on
`available A2J apps in Canada. To date, there has been no attempt to comprehensively list or
`categorize Canadian A2J apps. Our inventory and taxonomy seeks to fill this gap. Additionally,
`as noted above, given that the US has more experience with these apps, we included those in
`our data gathering for the sake of comparison and in order to provide a broader set of data.
`The Canadian and American apps gathered in Appendix C and Appendix D, respectively, were
`coded according to six features:
`
`
`1. the developer(s) of the app;
`2. the app’s intended users or target audience;
`3. the type(s) of law the app engages (i.e., family, criminal, tax);
`4. a brief description of the app (as provided by the app itself);
`5. the accessibility of the app (whether it is free or for a fee); and
`6. the function(s) the app serves (i.e. providing legal information, offering
`administrative information, document or form creation, evidence collection, legal
`advice, self-help, or ‘other’)
`
`
`All efforts were made to ensure the information listed in Appendix C and Appendix D is
`accurate. Some limitations should be noted, however. First, this information was collected
`between May and August 2016 and some of the information may have changed in the ensuing
`months. Second, information on the six features listed above was obtained from public
`resources located by our research team. It is possible that there may be additional information
`contained in private sources or other public sources that is not included here. Third, we did not
`independently verify information about an app provided by its developer(s). For example, if an
`app developer indicated that the app performed a certain function, we included this function in
`our taxonomy and did n