Column

One Shared Legal Future, Too Many Solitudes

We often talk about the “Two Solitudes” within the legal profession: the silos between the academy and the profession. However, a recent talk by the Treasurer of the Law Society of Upper Canada Thomas Conway made me realize that this dichotomy is wrong. There are not two solitudes within the legal profession, there are many more. 

As the Director of the Cavanagh LLP Professionalism Speaker Series at the University of Ottawa’s Faculty of Law, I invited the Treasurer to speak about “The Law Society of Upper Canada: Promoting the Public Interest and Facing the Challenges of a Changing Legal World”.

Conway was remarkably candid (and optimistic). He asserted (rightly in my belief) that we have seen more changes in the regulation of the legal profession in Ontario over the past decade than we have in the previous 200 years. He likened the Canadian justice system to the city of Detroit: collapsing under its own weight and citizens forced to turn to self-help.

He talked about the fundamental change in the role of the Law Society of Upper Canada brought about by the passage of the Access to Justice Act in 2006 which amended the Law Society Act to provide, inter alia, that:

  1. The Society has a duty to maintain and advance the cause of justice and the rule of law.
  2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
  3. The Society has a duty to protect the public interest.

Historically, the Law Society had two mandates regarding the lawyers that it regulated: (1) ensuring competency; and (2) ensuring ethical behaviour. Conway wants the Law Society to take on a third role: leadership in access to justice and in public interest.

He ended with a call for members of the legal profession to embrace and shape the change.

The nearly 100 members of the audience were composed of mostly students, some faculty members, with some healthy representation from members of the Ottawa bar – public and private – attracted by the topic, the speaker or the free accredited ethics and professionalism CPD.

In the Question and Answer period, Conway was peppered with questions from students about the Legal Practice Program (LPP) and the increase in fees for students.

It is understandable that students are concerned and angry about being forced to shoulder the lion’s share of the burden for the LPP. In a prior post, I argued that the burden of training the next generation of lawyers should be more evenly shared amongst members of the legal profession. To its credit, the LSUC is partially subsidizing the cost of the LPP. Every member will pay $25 in fees towards reducing the licensing fee for students by $500 each. I think the profession should do more.

Conway appeared sympathetic to this position but he is a realist. He told the students the cold hard truth: there is very little sympathy for the plight of law students, articling students or LPP students out there in the profession. If anything, Conway understated the harshness of feeling “out there”. The law schools are blamed for much of what ails the legal profession these days, including even the demise of Heenan Blaikie!

Frequent comments on Twitter blame the law schools for churning out more lawyers than the market can supposedly absorb (conveniently ignoring the legal profession’s chronic failure to address the shortage of legal services to the vast majority of Canadians).

No students asked Conway about how Convocation would deal with the issue of accreditation of Trinity Western University’s proposed law school with its discriminatory Community Covenant

There are actually multiple solitudes in the legal profession: a very fragmented bar consisting of large law firm lawyers, smalls and soles, in house counsel, criminal defence lawyers, government lawyers, etc. Then there are law students and articling students. And finally those of us in the academy (who are far from united on most any subject).

When I listened to the law students speak passionately about student debt and impact of fees on equity groups, I couldn’t help but wonder how many of their predecessors who are now practicing lawyers had once voiced similar concerns and how many of these current students would remain vocal once they were “in” the profession.

Conway ended his address with a call to “embrace and shape the change” in the legal profession. He is absolutely right that we have a shared future in the legal profession; whether we are able to face it together is another challenge.

Conway’s own reflections about his speech have been posted here on his blog.

Retweet information »

Comments

  1. m. diane kindree

    I think Mr. Conway can call all he wants but the reality is he may never get a response from the profession.
    In B.C., the primary mandate of the legislation that granted the Law Society the right to self-governance was based on the “duty to protection the public interest.” (I am surprised to learn it was only added to the Law Society Act, of Upper Canada, in 2006.) Unfortunately, as I discovered, thanks to the Law Society of B.C., this was a phrase that was wildly tossed about but rarely adhered to in investigating and disciplining unfit lawyers. In fact, it took years to win my FOIPP case against the Law Society of B.C., in the public interest. I challenged the Law Society at ever turn for their lack of transparency, accountability, unfair and unjust hearing practices which repeatedly ignore not only the public interest but the basic rules of law. For over 135 years, the Law Society of B.C. was above any public scrutiny because for a member of the public to dispute their regulatory practice is a lonely, difficult, costly, time-consuming and frustrating endeavor. While some progress has been made to ensure public representation on the hearing and discipine panels, the lack of equal public v. Law Society representation still impedes the legitimacy of this public gesture. It still boggles the mind to think that for 200 hundred years a Law Society could be granted a legislated right to self-govern without a primary mandate to protect and defend the public interest. Maybe it is time all the AGs, in the provinces and territories, review the Law Society Act to ensure that the right to continue to act as a self-governing body depends on the enactment of these three key pieces of legislation: 1.The Society has a duty to maintain and advance the cause of justice and the rule of law.
    2.The Society has a duty to act so as to facilitate access to justice for the people of (Province or Territory)
    3.The Society has a duty to protect the public interest.

    Sadly, unless the AGs act I can see the same fate befalling the words “access to justice” that I experienced with “the public interest” because the only power in these words is to sway public opinion and not fix the problems. I really hope that I am absolutely wrong and that Mr. Conway’s talk motivates the profession to act sooner rather than later.

  2. Adam,
    The mistake you and others make about spewing out lawyers at a rate five times greater than population growth is believing that that will bring down the cost of legal services to the public. If that were true, the US would have the lowest cost legal services in history because they have the highest number of lawyers per capita in history. Instead, they have the highest cost legal services per capita. Hugely increasing the number of lawyers per capita is a disaster for the public, but a boon to law school tuition and grant revenues.

    As for the LPP, the students should be informed that the reason they are in this pickle is due to the government’s negligent misallocation of scare education resources, the irresponsible behaviour of the professional universities who decided, among other self-serving reasons, to make up for the loss of medical student tuition by no longer failing any law students, and who bloated up the law schools in one case due to computer error (all bloating done with no regard for the public interest), and the willingness of the Law Society to let those who caused the problem off the hook by creating the LPP to assist students to get called to the bar of Ontario regardless of market realities and regardless of the fact that some of them will have begun their journey overseas with below average undergraduate marks, no undergraduate degree, and no LSAT and then passed through a system that essentially fails no one at law school, fails no one at the LPP, and fails no one at the bar exams.

    They should also be informed that, upon being called, a large number of them will have no job and no or inadequate mentoring, but will have to foist themselves upon an unsuspecting public while saddled with horrendous debts that will cause them to have to churn, to the great detriment of the public interest, their few files to pay some overhead and take a little home.

    We should also inform them that we are charging them for the eight months of the LPP far less than an eight-month year at law school so, if they want to reduce costs, they can go and badger the law schools, not the Law Society.

    We should also inform them that some Law Society decision makers want to turn the practice of law over to insurance companies, multi-national accounting firms, grocery chains, and American title insurers who will drive down their abilities to earn decent incomes (with no savings to the public whatsoever), drive thousands of lawyers out of areas of practice (whereupon the new owners of those markets will charge the public far more than the lawyers ever did), drive down their loyalties to their clients, and otherwise make the private practice of law a misery.

    We should also inform them that the decision maker lawyers who work as salaried employees, or as salaried government bureaucrats, or as salaried law professors, or in giant firms will be unharmed (other than by the worsening of the society they have to live in), and since the small firm bar is so woefully under-represented at the decision making levels, the small firm areas of practice can be sacrificed; yet, in small and solo firms is where most of these LPP grads will end up.

    We (the government, the professional universities, the law schools, and the Law Society) could not have made a worse hash of the system if we had tried, and it will be very much to the detriment of the public and society in general.
    Brad

  3. Part Two,
    Tom Conway and others talk a lot about reducing barriers to access to justice. Trouble is they almost never focus on the one barrier that, by far, dwarfs all other real and mostly alleged barriers combined, and that is the time and therefor cost of resolving litigation disputes. Tom and others talk about the already puny cost of Wills, for God’s sake, and practically not at all about reducing, say, in half the time it takes to resolve litigation files. That is where 99% of our focus should be, but it barely registers on the radar. Why is that, do you suppose?

  4. Dear Mr. Wright,

    You argue that more lawyers will not drive down legal fees and point to the USA as proof.

    I’m curious. Can you point to more evidence and analysis of the cost of legal services relative to practicing lawyers in the US? And do you have more information about the relation between lawyers, legal services, and population in this country?

    It’s not that I disagree with you necessarily, only that I feel there must be some reason that more lawyers per capita doesn’t translate into cheaper legal services. The American problem of having far too many law schools of dubious quality doesn’t seem to apply to Canada, where tuition rates for students are going up because of demand while class sizes (unsightly administrative errors aside) aren’t necessarily keeping pace.

    I attended the lecture that Professor Dodek references in his essay. My personal takeaway from Conway’s speech was that there was a serious problem with regulating articling in Ontario. I have heard another professor at U of O law comment that a similar problem with training standards may even exist at the university level.

    What better standard or oversight should there be for training in law faculties or in articling?

  5. Hi Jacob,
    First, the small firms that are so woefully under-represented in Convocation are the small solicitor firms. There are quite a few small firm barristers there. Out of about 54 voters in Convocation (as of this Spring when paralegals will be guaranteed five benchers), only 5 1/2 are from the solicitor bar; yet, we are half the practising bar. Of the five, two are there only because of the regional bencher rule and then by the skin of their teeth. After the next election in 2015, solicitors could be reduced to one or two benchers.

    Second, I do not have at the ready the details about the American experience. Over the years, I have read numerous articles and critiques of the many, many problems with the US legal system. For one, their tort system is history’s costliest. For another, the irredeemably evil title insurance industry killed off most of the real estate lawyers whereupon they jacked up their prices to far more than what the real estate lawyers ever charged while delivering, in the pithy words of an American title insurance company employee (who used to run her own real estate law office until she was loss-leadered to death), “shit service”. California accurately describes the US title insurers (of which four companies have 87% of the market) as a “dysfunctional industry in which the public pays too much” and the Supreme Court of Iowa accurately describes it as “an invidious form of business”. This is ABS in action.

    Third, as the number of barristers per capita explodes, more and more barristers, struggling to pay the overhead and make a living, are forced to churn what files they have and, of course in the US, generate silly claims right, left and centre, hoping to get some sort of settlement money. Too many lawyers per capita is a disaster for public because we can generate demand for our services in ways that few sectors of the economy can. The paradox is that they do not take on the unrepresented litigants because the churning is what makes the lawyers unaffordable.

    There are endless piles of materials on the excessively costly US legal system. I am sure you could find them with some internet searching.

    Fourth, the attack on articling is bogus. We did extensive surveying and found that the vast majority of our members reported having had excellent and beneficial articles. An important additional benefit was the creation of a mentoring relationship even if the student was not hired back. The Treasurer and others have chosen to focus on the few lawyers who claimed that they did not have a good articling experience to bolster their case to make changes that are (a) not necessary and (b) far more harmful than the system they propose to amend. There is no better early career education than a few years at the elbow of an experienced lawyer, but we are being asked to move to a model that features yet more classroom time (bureaucrats love that because they have more control then) and stints in poverty law clinics that, while worthwhile, do next to nothing to prepare the lawyers for serving the vast majority of their future clients who are not poverty stricken.

    Focussing on the demand of students wanting to go to law school misses the point entirely. The real issue is whether spewing out lawyers like a tsunami is good for the public, and it clearly is not.

    And we do, in fact, have the same problem as the US in terms of substandard law schools because we now have a system where, if Mommy and Daddy can pay for it, you can go to law schools in other parts of the Commonwealth with below average undergraduate marks, no undergraduate degree, and no LSAT and, the moment you pay your first year tuition, you are guaranteed to be called to the bar of Ontario.

    The government, the law schools, the Law Society and Convocation could not have made a worse hash of our legal system if they had sat down to do so with malice aforethought. ABS will accelerate the rot and deterioration a light speed.

    Cheers,
    Brad

Leave a Reply

(Your email address will not be published or distributed)