The Greek philosopher Heraclitus is quoted as saying the only thing that is constant is change.” As lawyers, we often resist the tides of changes, by resting on the comfort of status quo and the notion that stare decisis is written in stone.
The Court in Carter v. Canada (Attorney General) recognized that the doctrine of precedent is fundamental to our legal system, as it provides some certainty, but stated at para 44,
However, stare decisis is not a straitjacket that condemns the law to stasis.
Changing societal contexts and shifts in our understanding of the law have allowed the Court to overturn the 1987 Labour Trilogy with their 2105 decision in Saskatchewan Federation of Labour v. Saskatchewan. The companion decision in Mounted Police Association of Ontario v. Canada (Attorney General) warned, while overturning its own decision in Delisle v Canada,
 Overturning precedents of this Court is not a step to be lightly taken…
Where a legal framework was considered unworkable or ineffective, as in R. v Morin, the court has demonstrate a willingness to revisit underlying principles. In Canada v Craig, where the Court overturned its decision a quarter of a century prior, they stated,
 The vertical convention of precedent is not at issue with respect to the decision as to whether the Supreme Court should overrule one of its own precedents. Rather, in making this decision the Supreme Court engages in a balancing exercise between the two important values of correctness and certainty. The Court must ask whether it is preferable to adhere to an incorrect precedent to maintain certainty, or to correct the error…
Lawyers, who are closely wedded to decisions by the courts to signal our approaches towards legal reasoning and decision-making, would understandably be prone to risk aversive behaviour towards change or innovation. Occasionally, it occurs despite this recalcitrance.
Where this resistance to change often manifests the most in the profession is in voluntary membership based professional associations, where the culture is often protective and reactionary to changes that invariably occur, with or without their involvement.
The largest of these organizations, the Canadian Bar Association (CBA), has made a concerted effort to revitalize itself in light of trends such as shifting generational values, technological advances, changing marketplace efficiencies, erosion of confidence in the justice system, and blurring of professional boundaries. The project, branded as “Rethink,” began in 2013 and was formally adopted in August 2016.
Voluntary membership based organizations have been experiencing a downward trend in membership across all professions. Channels of information sharing and interpersonal connection have changed from years past, in large part due to technology. Professional organizations are facing a relevance deficit, and the membership decline has significant financial impacts.
Former CBA president Simon Potter at the 2016 CBA Mid-Winter meeting,
If we sit back and keep talking about this the way we liked to do in the 70s, 80s and 90s, we’ll die. … It’s extremely important that we stop talking about this … it’s time to get going.
Thinking of our role in the profession in society – or rather, rethinking – is something that lawyers continue to have challenges with. The practice is not only beneficial to the organizations, but the professionals who comprise its members, and is also known as reflective practice.
This past week, I shared a panel Sarah Buhler, Noel Semple, Martha Simmons, Nicole Aylwin, Susan Ursel, and Michele Leering, to discuss Innovation and Access to Justice: Addressing the Challenge of a Diverse Justice Ecosystem at the 2018 Law and Society Association (LSA) Annual Meeting in Toronto, based on the December 2017 special issue of the Windsor Yearbook of Access to Justice.
Leering spoke on the need for innovation in the justice sector, and emphasized reflective capacity as being a crucial enabler of innovative thinking. She acknowledges that the professional associations like the CBA have already acknowledged that the profession lacks a culture of innovation that threatens its very future and viability. She envisions a reflective practitioner in law,
…as a professional who is self-reflective and self-aware; who critically reflects on practice (what one does), theory (what one knows), and values (what one believes); and who acts to improve practice based on reflective insights (praxis).
This capacity for reflection serves as a prerequisite to fostering innovation at an individual, organizational and systems level. It supports better knowledge management and information sharing, and can contribute towards building a learning organization. The CBA has itself advocated for a justice system characterized by learning organizations, but it’s unclear if this vision has made its way down to the membership or at the branch level. Instead, the building blocks for this approach might need to be cultivated at a much earlier stage in legal careers,
Building the capacity for disciplined and rigorous reflection in the profession, beginning from the first day of law school, will serve as an important enabler of innovation in the justice sector.
Focusing primarily on innovation in family law, Semple highlighted the need of a revolution in practice that focuses on accessibility. Through innovative fee structures, service variety, and divisions of labour, the private sector, client-paid family law practice can undergo the change needed to ensure that one of the worst access-to-justice problems are addressed.
Semple notes that the CBA Futures Initiative is one of the few areas of scholarship that has examined innovation in the Canadian legal practice. And yet this area of law poses the greatest challenge for public confidence in our legal system, because the public indicate that legal services are too costly for them as they are currently structured. His focus is on finding a solution to access to justice through viable business models,
Altruistic voluntarism is commendable and valuable. However, the accessibility-enhancing innovations that are most likely to be widely adopted by family law firms are those that maintain or even improve firm profitability.
According to Ursel, the legal system is facing a crisis of legitimacy and workability, because the same kinds of thinking that brought us to this point will not help us to address these challenges. She to recognizes the role of the CBA in identifying the need for innovation, but highlights some practical questions of how innovation works. Instead, she cites the need for design thinking and abductive reasoning to overcome inherent resistance points in law,
Given its purpose and tasks, law as a system must be incredibly resilient but not necessarily wildly creative. It cannot be too flexible as to lack ordering principles or rules, yet it cannot be overly rigid as to risk collapsing in the face of change. In order to strike this intricate balance, law has developed tools for achieving flexibility without chaos. These tools come in the form of principles like stare decisis, which preserve the integrity of the law yet contain within themselves a capacity for (more or less) orderly legal change through democratic institutions like governments, legislatures, and courts. Law, as a system, strives to provide some certainty within which other human activities take place. In this, it is averse to risk and can literally punish those who engage in careless risks. These structures, and others like them, shape and inform our “legal mindset.”
The CBA even recognized this mindset explicitly in its Futures report when it observed: “The legal profession to date has been, in large part, conservative in dealing with change … [and] can no longer afford to plan for the future on an occasional basis.”
My focus on the panel was on legal incubators, which I discussed here on Slaw half a decade ago. Despite also being referenced in the CBA Futures Initiative as a key strategy to ensure future relevance, there has been little to no uptake on implementation by the organization itself of these strategies. Given the CBA’s post-Rethink focus on ensuring branch autonomy and service delivery, this challenge would fall on the provincial branches who would also understand the regionalized needs of their respective legal markets.
Because strictly theoretical discussions are hardly an effective way to implement change, I opted recently to put my name forward for the position that leads to President of the Ontario Bar Association (OBA), on a platform that would seek to implement an incubator at our branch level. This role would go beyond the traditional functions of professional organizations of providing CPD and engaging in advocacy. It would ensure that this role is focused on the practice of law, which is what a voluntary membership based professional organization should be based on, and would fill the gaps from ineffective attempts at institutional mentorship programs.
We discussed at the LSA meeting some of the ways that reflective thinking and the development of effective business models could be employed to ensure the relevance of professional organizations like the OBA, and increase membership as the organization provides better value to the law students and young lawyers who will be the catalysts for innovation. The workshops of this change will occur in small and solo law firms that are typically supported by incubators, through reflective practice and information sharing between those in private practice.
Whether the OBA Council embraces this vision will be determined on June 15, when our voting begins. As there are no direct elections in the OBA, the vast majority of young lawyers and those in private practice who would benefit from this strategy will not have a say as to whether the organization breaks free from the straitjacket of the past.
The world has already changed around the legal professional organizations. Despite lots of thinking and rethinking, it’s still not certain whether our organizations will abandon the comfort of certainty, and embrace the correction in our direction to guarantee a viable future.
We find out, here in Ontario, in early July.