Is the practice of law predominantly a business or a profession? The debate is an old one. When Governor General David Johnston spoke of the practice of law at the recent Canadian Legal Conference in Halifax, he described it as much more than a profit-driven business. He portrayed a noble profession with duties to the client, to justice and to the public interest. He saw a social contract as existing between lawyers and society:
“There are three principal elements to any profession’s social contract. First, the profession is characterized by specialized knowledge that is taught formally and obtained by experience and under supervision. Second, the State gives it a right to have a monopoly and to control entry and exit standards and competence and, to some degree, fees. Third, it has a responsibility to society to serve beyond the needs of specific clients.
We enjoy a monopoly to practice law. In return, we are duty bound to serve our clients competently, to improve justice and to continuously create the good. That’s the deal.”
With high talk of improving justice and creating good, the Governor General could just as easily have said, “That’s the ideal.” His speech was the most recent in a long line of speeches by very esteemed officials (including Chief Justice Beverley McLachlin’s remarks at the same conference) to trumpet the ideals of professionalism in the face of rapidly deteriorating public confidence in our justice system.
Back in 1999, several years prior to ascending to the Supreme Court of Canada, Rosalie Abella identified vision, innovation and idealism as equal or greater indicators of success as a lawyer than money, partnership and hard work. She said: “If we venerate these qualities and reward those who have them with our respect, we send signals to the profession that our shared values and expectations exceed the tangible economic consequences of the expertise we enjoy.” Abella theorized that three basic values merged in a “good lawyer”: a commitment to competence, a commitment to ethics, and a commitment to professionalism that, by her reckoning, transfused the public interest into the two other values.
Our law schools and law societies are rightly preoccupied with instilling and enforcing the first two values: competence and ethics. But both tend to leave the third value of professionalism dangling. Every Canadian law school offers a course or two on issues of social justice, and supports or accommodates a pro bono clinical program that increases access to justice for local low-income individuals. But few if any law schools go much further than that; professionalism (at least of the sort contemplated by the Governor General and Abella) is left for lawyers to learn on the job.
Our law societies, meanwhile, do little more. They protect the public interest by enforcing minimum standards of competence and ethics, but they do not serve the public interest by ensuring that lawyers fulfill any duties to “improve justice and continuously create the good.” If our law societies were serious about ensuring some standard of active professionalism, they would impose a professional responsibility on lawyers to provide legal aid or pro bono services, make public service the prime consideration for appointment to high positions, and adopt aggressive positions in urging governments to provide adequate levels of funding to legal aid.
However little they do to promote the Governor General’s brand of professionalism, our law schools and law societies do even less to ensure that lawyers know how to manage a business. The skills of business management are also left for lawyers to learn on the job. Laden with student loan debt, most law graduates are thrust into the traditional law firm business model with only a basic understanding of how revenues are generated, balanced against expenses and distributed throughout the firm. It does not take long to understand that their main priority is to build the necessary competence and meet the necessary ethical requirements in order to maximize revenues. Relatively few lawyers are left with the time, energy and job security to serve the public good. Lawyers are too busy chasing down business in a competitive global market. It is this reality that prevents many private practitioners from pursuing the lofty ideals supported by the Governor General, judges and academics.
At the same time as a higher brand of professionalism seems unaffordable, it may still be what stands between the profession and deregulation. The Governor General predicts dire consequences for the profession if it fails to serve beyond the needs of paying clients:
“What happens if we fail to meet our obligations under the social contract? Society will change the social contract, and redefine professionalism for us. Regulation and change will be forced upon us—quite possibly in forms which diminish or remove our self-regulatory privilege.”
Indeed, the voices calling for deregulation are getting louder. In a recent Wall Street Journal editorial entitled, “Time to Deregulate the Practice of Law”, it is argued that deregulating the American legal industry would result in the availability of more responsive and less expensive legal services for consumers. The authors claim that “competition supplied by new legal service providers, who may or may not have some type of law degree and may even work for a non-lawyer-owned firm, will not only lead to aggressive price competition but also a search for more efficient methods to serve clients.” They further claim that the competence and ethical levels of “established lawyers” would not suffer in the absence of professional regulation, since market demand and enhanced online tracking would serve to keep them buoyant.
The American legal profession is also threatened by flank attacks from online legal companies that are radically altering the way by which legal services are delivered. “Elawyering” outfits like LegalZoom and RocketLawyer offer self-fillable forms for basic wills, powers of attorney, incorporations, basic divorces, copyright filings, and other simple legal matters at minimal cost to consumers. Slaw columnist Jordan Furlong calls these new developments “disruptors”, and predicts similar disruption and upheaval for Canadian lawyers and law firms.
So how will the legal profession react to these threats and disruptive influences? Will it adapt the traditional law firm business model to become more efficient, convenient and accessible? Will it heed the Governor General’s call and pursue his version of professionalism in a collective effort to revitalize and prioritize the concept of noblesse oblige? Will it do both? If it bucks the business-minded trend and takes the higher road of professionalism, it has a long, uphill distance to travel. And it may already be too late anyway.