Chief Judge Looks to Pro Bono to Address Access to Justice Concerns

The Chief Judge of New York State announced that henceforth (did I really use that word?) all applicants for the New York state bar must complete 50 hours of pro bono work. Can he do this? Yes he can. In New York, as in many states, lawyers are licensed and regulated by the courts. Many state courts have delegated this power to state bar associations, but not New York state. Chief Judge Jonathan Lippman said that the new requirement was intended to provide badly-needed legal services in urgent cases like foreclosures and domestic violence. New York is the first state to enact such a rule; others may follow. Could this happen in Canada?

Dare to Dream

In an interview in the December 2011 edition of the CBA's magazine The National, the Governor-General reiterated the substance of his provocative remarks at the CBA's August 2011 Legal Conference in Halifax. In the interview the GG asserted:

I would be inclined to say we should see 10 per cent of our time devoted to pro bono causes as part of our professional responsibility. The figure is about 3 per cent now.

I have been privileged to teach legal ethics at the University of Ottawa and before that at Osgoode Hall and U of T. I love teaching legal ethics because students have fresh and valuable perspectives on so many important issues in the legal profession. Legal ethics is a branch of "professional ethics", special ethical rules that apply to members of a profession. What we think it means to be "a good lawyer" , "a good soldier" or "a good doctor" may differ from society's general understanding of what it means to be "a good citizen". In legal ethics we struggle with these issues as we analyze and debate topics like choice of client, access to justice, confidentiality, conflicts of interest, being a criminal defence lawyer, being a government lawyer, etc.

I have found that our students have great perspectives on these issues because they were so recently members of that ridiculous term that only lawyers use: "lay people". While law school is certainly a socialization process for the legal profession, law students have not been fully socialized. Many remain (and hopefully will remain) strongly idealistic. They remember their previous professions or occupations or status as simply ordinary non-legal folk and they are less willing to accept the "that's the way it is" explanation for ethical rules in our profession. Students challenge us in the academy to be better and they also challenge us in the legal profession to do better. Some students do great work and fortunately there is recognition for outstanding legal writing by prizes such as the JSD Tory Prize in Legal Writing awarded at Canadian law schools and the recently established Reuter Scargall Bennett LLP Essay Prize in Legal Ethics awarded by the Chief Justice of Ontario's Advisory Committee on Professionalism. Some of these papers are published and their ideas can be shared with the legal community.

But law students produce great writing every day that never sees the light of day. Such writing may be pleasurable for law teachers to read and the grade awarded may bring a smile to the law student's face, but it is rarely shared with others. This year students in my first year and my upper level Legal Ethics and Professional Responsibility courses at the University of Ottawa inspired me to reach out to Slaw.ca editor Simon Fodden and ask him if he would be interested in publishing some of their work on this blawg. To Simon's great credit, he quickly accepted. I hope you will find the students' blogs this week interesting and will offer your comments on them. If you don't like one of the blogs, you can always blame the teacher…

In an unprecedented move that reflects a climate of judicial concern over the BC Justice Reform initiative, the three Chief Justices of BC's courts issued a five page statement on judicial independence today. The statement was issued by Chief Justice of BC Lance Finch, Chief Justice Robert Bauman of the Supreme Court of BC and Chief Judge Thomas Crabtree of the Provincial Court of BC. The statement is entitled "Judicial Independence (And What Everyone Should Know About It)." In a previous post, I reviewed the BC Government's launch of the Justice Reform Initiative which includes a Green Paper on Modernizing BC's Justice System, an internal audit of legal aid, and the launch of a new website on court information and statistics.

At the time of the launch of the government reform initiative in Februrary, the three chief justices responded by issuing the following 2 paragraph statement:

We always welcome the opportunity to engage in dialogue with Government and other justice system participants on the issues and challenges facing the justice system. A fully functioning justice system is an essential element of a free and democratic society governed by the rule of law. Any suggestions for improvements to that system merit serious consideration.

Such a review, however, must recognize that the various participants in the justice system operate within a constitutional framework. That framework places certain responsibilities on the participants and is founded on an independent judiciary. Any recommendations for reform must respect the constitutional framework in which we operate.

That statement told me that the judges were likely caught somewhat by surprise by the announcement or by the contents of the Green Paper, specifically its identification of judicial independence as a challenge to reform.

The statement issued today goes much further. It is a fabulous primer on judicial independence. However, the fact that the chief justices of the three courts felt compelled to issue such a statement demonstrates the uncertainty and concern surrounding the justice reform initiative that prevails among members of the judiciary in BC. The Chief Justices joint statement ends with the following invokation:

The judiciary is always open to discussing ways to improve the administration of justice. Indeed, all levels of court have engaged in extensive discussions with government officials over the past several years with a view to achieving that end. In being open to discussion, however, the judiciary will remain steadfast in protecting the essential elements of judicial independence, as the precursor and guardian of judicial impartiality.

The BC government will likely have to be more sensitive to concerns about judicial independence and engage the judiciary in more constructive dialogue if its reforms are to be successful.

You may have heard about helicopter parenting – the overprotective parent who hovers over their child on the playground, maybe takes them to university, stays in the dorm for a few weeks, maybe even to law school… Well Justice McGee of the Ontario Superior Court of Justice will have none of this! In 2011, she issued an ex parte order preventing a party's mother from representing him in a family law case. Mom had represented son in his Nova Scotia divorce proceeding. The divorce proceedings were acrimonious and the ill-feelings between Mom and her former daughter-in-law are evident in the correspondence quoted in the court decision. When the former daughter-in-law initiated proceedings in family court in Ontario seeking financial disclosure and revised child support, Justice McGee made an ex parte order on her own initiative as follows:

I further order that Ms. Lavalley [Lawyer-Mom] may not act as counsel for her son without further Court Order. In reviewing the materials filed, I am satisfied that it would not be appropriate for her to so act and may be prejudicial to a determination of this matter. If I am wrong in this, then she should consult Practice Advisory of the Law Society to establish an ethical basis and then file materials to my attention in a claim to act on behalf of her son.

The respondent son moved to set aside the order on the grounds, inter alia, that he cannot afford the cost of legal counsel and his mother was prepared to represent him pro bono; that his mother had acted for him throughout the prior divorce proceedings in Nova Scotia; and that his former spouse had made no attempt to remove her mother-in-law as counsel in those proceedings. Justice McGee declined to set aside her ex parte order.

Her reasons included the following grounds:

(i) The court has an inherent jurisdiction to remove counsel;

(ii) The right to choose one’s counsel cannot be exercised at the expense of the integrity of the judicial system;

(iii) Counsel should be removed if circumstances are such that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor;

(iv) The Court must consider any personal relationship between counsel and client and determine if the personal involvement will impair the lawyer’s judgment;

(v) It is well settled that lawyers cannot act for persons with whom they are romantically involved. No less a standard should be applied to lawyers who are in a close familial relationship with a litigant and whose personal interests are caught within the proceeding;

(vi) The record, particularly the email referred to above, is persuasive evidence that Ms. Lavalley cannot separate her personal views from her professional role as counsel; and,

(vii) Ms. Lavalley is clearly in a position where she is a witness to her son’s financial affairs.

Leave to appeal was granted in this interesting and novel case. See Judson v. Mitchele, 2011 ONSC 6004. Fortunately, I am teaching conflicts next week!

A Broad and Ambitious Justice Review

BC Premier Christy Clark along with her newly-titled Minister of Justice and Attorney General Shirley Bond announced a broad-ranging review of the BC justice system last week. In conrast to many previous reviews in other jurisdictions, this review is not lacking in ambition or scope. The review includes a Green Paper on Modernizing British Columbia's Justice System and an internal audit review of the province's justice system. It also includes a review of BC's criminal charge assessment process, a Legal Aid Services review and a new plan to post justice system data on the ministry website. Bond appointed well-respected Vancouver lawyer Geoffrey Cowper, Q.C. of Faskens as Chair of the review.

The timeline for this sweeping review is short, perhaps unrealistically so unless the BC Government already has a package of reforms in mind. According to the Executive Summary of the Green Paper, "In July, government will issue the results of the review and consultations, along with an update on ongoing administrative reforms and will develop a plan of action to be outlined in a White Paper on Justice Reform in September 2012" which will also include any plan for legislative changes.

For those unfamiliar with Green/White papers in policy development, the Green Paper explains that:

A Green Paper is issued by government to indicate that:

• it is plain that serious consideration must be given to solving a challenge faced by government
• determining the right course of action first requires bringing the issues to the attention of the public and key stakeholders in a clear manner
• government is committed to announcing legislation or other meaningful action in a subsequent White Paper

Last week the Federal, Provincial and Territorial Ministers of Justice met in Charlottetown for an annual conference started four decades ago by then Minister of Justice John Turner. With the big price tag attached to the federal government's omnibus crime bill C-10 and budget cuts on the horizon, there were no significant spending commitments by the federal government.

Legal aid is still on the agenda at these meetings, but barely. By my count, it is item number 16 out of 19 in the post-conference communiqué. Here is what the carefully-crafted language said:

Ministers affirmed their commitment to a responsive, fair, efficient and accessible justice system which includes access to legal aid and referenced the common statement of principles approved in October 2010. Provincial and territorial ministers asked the federal Minister of Justice for continued and enhanced federal funding support for criminal legal aid to address the continued pressures faced by all legal aid programs. They asked for early confirmation of the level of federal funding given that existing agreements expire at the end of March 2012. Provincial and territorial ministers also noted the need for renewed and enhanced funding for immigration and refugee legal aid for those jurisdictions offering such services

In a post last month, I reviewed efforts by former Minister of Justice to establish a national legal aid plan. In a time of budget cuts, we cannot expect that governments will invest in legal aid and access to justice. Solutions must come from us, within the legal profession or else we will wait while Ministers continue to "affirm their commitment" to an accessible justice system which includes access to legal aid.

In Elusive Destiny: The Political Vocation of John Napier Turner, Carleton University historian Paul Litt has written a sympathetic and interesting account of one of Canada's most gifted political figures. Litt leaves the reader wondering what Canadians missed out on by not having John Turner as Prime Minister for an extended time. Those interested can delve into this book.

Turner did serve as Justice Minister for almost four years (July 1968 – January 1972). He was an activist, reformist and progressive Justice Minister but he also served as Attorney General during the invocation of the War Measures Act during the October Crisis in 1970. We have records of Turner's actions as Justice Minister but Solicitor-Client Privilege shields the advice that he gave Trudeau and the Cabinet regarding the October Crisis. That is unfortunate and serves no good purpose, 40 years after the fact.

Litt makes a strong case for Turner as possibly Canada's best ever Justice Minister. A look at the list and the brief tenures of many Justice Ministers since Confederation shows that there is something to Litt's claim. Turner pursued liberal bail reforms and expropriation reforms. He created the Federal Court. He reformed judicial appointments. He established a Legal Research and Planning section of the Department of Justice. He convened his own justice thinkers conference at Montebello which included Dean of McGill Law Maxwell Cohen, future Supreme Court justices Gerard Le Dain and Gerard La Forest, F.R. Scott and Harvard Law Professor Alan Dershowitz. He created the Canadian Judicial Council and the Law Reform Commission of Canada (pp. 109-19).

Like the brother of his acquaintance Bobby Kennedy, Turner surrounded himself with the best and the brightest. He hired Jerry Grafstein and a hippyish Irwin Cotler fresh out of a grad school who apparently freaked people out with "his long hair and granny glasses" (p. 115).

This could be The Year of Access to Justice in Canada. Whether it is a good year or a bad year for Access to Justice is TBD. The fate of Access to Justice is to be determined by governments, by the courts, by the legal profession and yes, by lawyers ourselves.

Dark Clouds on the Horizon: Justice Budgets 2012

In 2012, we are likely to see serious fiscal pressures on Access to Justice through budget freezes or cuts to legal aid plans, courts and other justice programs. Serious cuts to legal aid have already been proposed in the UK and there is job action in British Columbia protesting against a decade of cuts. With massive budget deficits at the federal and provincial levels, justice budgets are likely to be on the chopping block. For example, in Ontario the latest figures for 2010-11 show that the Ministry of the Attorney General (MAG) had expenditures of almost $1.44 billion. The largest single expenditure consisted of transfers to Legal Aid Ontario of $320 million or a whopping 22% of the MAG budget. If each Ministry is asked to find 10% in savings, Ontario's MAG will have to come up with $144 million in savings. Where is this going to come from? Not from fighting crime or from victims services in all likelihood. Ministry of Finance officials always target legal aid for savings precisely because it is the single largest expenditure in the justice budget.

Thus, Government is not going to be the answer to Access to Justice in 2012. But neither are the courts likely to provide much in the way of solutions. The courts have contributed more in the way of rhetoric than in concrete solutions to the access problems.

Solutions: Lawyers – Heal Thyselves . . . and the Justice System

Solutions – if they are to be found, must come from the legal profession itself. As the Governor-General implored us in August at the CBA's National Legal Conference in Halifax:

We in the legal community have a responsibility to take the lead in reforming the court system for the public good; remember our oath to “improve the administration of justice.” Justice delayed is justice denied. Or, as Joseph Howe pointed out: “He who delays or withholds justice excites discontent and sedition; [the King] would tell them that they were the rebels.

In further posts, I will discuss potential solutions from the courts and from the profession. Welcome to 2012!

Last month the Federation of Law Societies of Canada released a long-awaited Report on Conflicts of Interest prepared by its Standing Committee on the Model Code. This was the third attempt by the Federation with previous reports prepared by a Special Advisory Committee on Conflicts of Interest in June 2010 and in February 2011. The Federation settled the conflicts issue except for the thorny conundrum of current client conflicts. A copy of the almost-finished Model Code is available here. If this report is adopted by the Federation's National Council it will mark the completion of the Model Code (which was substantially completed in March 2011). More on specific issue of conflicts of interest to follow below.

The Federation's Model Code has been adopted by the Law Society of Alberta (effective November 1, 2011), the Law Society of Manitoba (January 1, 2011) and the Nova Scotia Barristers Society (effective January 1, 2012). Other provinces are expected to follow in 2012. Each province may retain local variances but the vast majority of the provisions will become uniform across Canada. In an age of national and international mobility, this makes eminent sense for lawyers, law firms, regulators and clients.

The controversy over conflicts of interest dates to the Supreme Court of Canada's decision in R. v. Neil, 2002 SCC 70 where Justice Binnie established "a bright line rule" providing "that a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client — even if the two mandates are unrelated — unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other." (para. 29). This sentence has caused great consternation in the legal profession and led the CBA to create a Task Force on Conflicts of Interest which produced a 284 page report in 2008 which includes an excellent Toolkit for lawyers and law firms on how to deal with avoiding conflicts.

The members of the CBA Task Force parted company with Justice Binnie over the necessity and the advisability of "the bright line rule" and recommended against its adoption in the CBA Code. The CBA Code was amended and took a different, more lenient approach to conflicts of interest between current clients. The Federation did not accept the CBA approach and hence the three reports by it on the issue. If you are interested in more details of what I describe as a decade long "battle over conflicts of interest in Canada" you can read my upcoming article here.

We have been quick to use the word “crisis” to describe the state of articling in Ontario. Maybe too quick. Certainly the rather abrupt rise in the rate of “unplaced lawyer candidates” – students unable to find articling positions – from 5.8% in 2008 to 12.1% in 2011 is an eye-popper and potentially a game changer. But a crisis, as the Globe and Mail reports today? Maybe.

Those that work in the legal trenches have known for years that another crisis exists – the access to justice crisis – now well documented by the Ontario Civil Legal Needs Project in its 2010 report Listening to Ontarians.

The Law Society of Upper Canada’s creation of an Articling Task Force presents an opportunity to shine attention and hopefully address ‘the other crisis’ of access to justice. At least this is the thought of a group of us at the University of Ottawa’s Faculty of Law, Common Law Section. The Faculty of Law at the University of Ottawa is hosting a series of lectures and workshops on the Legal Profession and Access to Justice. The series is a joint initiative of the Social Justice Caucus and the Professionalism Initiative, funded in part through the support of the Law Foundation of Ontario.

Imagine going into Walmart, Superstore or Loblaws to buy Halloween candy and being offered the chance to make a will or get summary legal advice on some issue. This might sound spooky or even scary to many Canadian lawyers but could become a reality in England and Wales with the launch of Alternative Business Structures (ABS) under the UK Legal Services Act. The New York Times has a great article today on non-lawyer ownership of legal services. Australia has permitted non-lawyer ownership of law firms for several years and the US is seriously considering it with the American Bar Association's Ethics 20/20 Commission. The ABA's Discussion Paper on ABS is available here. So far most Canadian lawyers and Law Societies are cool to these ideas, as the Globe and Mail's Jeff Gray reported earlier this month. With ABS a reality in Australia, coming to the UK and being mooted in the US, I don't think that Canadian Law Societies can keep their heads in the sand about this issue. To its credit, the Law Society of British Columbia released a preliminary report on ABS this month. At this time, the LSBC decided that no changes were warranted. However, all lawyers and Law Societies in Canada would be wise to heed the warnings in the last paragraph of that report: "where benefits to the consumer can be attained with proper regulation to ensure that professional values are not lost, the Law Society must develop proper regulation to allow for changes to the profession through which improved access to legal services can be attained." Happy Halloween!

We need to create an Ontario Legal Corps composed of lawyers and articling students to address the access to justice crisis in this province and we need to do it now. An Ontario Legal Corps will also go a long way to addressing the current deficit in available articling positions.

The articling crisis in Ontario is a supply-side program. It deals with the issue of the scarcity of supply of articling positions. As many judges and now the Governor General have reminded us, we have an Access to Justice crisis which is a demand side problem. The demand for legal services far outstrips the available supply as the Ontario Civil Legal Needs Project revealed.

Why not come up with solutions that attempt to match the two problems?

Clayton Ruby recently mooted the creative suggestion of paying a legal aid “articling student bonus” for legal aid work done by articling students. This is a great idea except that the prospect of any significant infusion of legal aid dollars coming from either level of government in the near future is remote. We need to keep working on governments but that is a long term strategy. In the short term, government is simply not the answer.

If we are to address the twin crises of articling and access to justice we must do so on our own. And it is in our collective interest as a profession to do so because as the Governor General warned us in August, 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.”

An Ontario Legal Corps – modeled along President John F. Kennedy’s Peace Corps - would provide legal services by lawyers and articling students to underserviced communities across Ontario. The idea of articling students providing legal services may be new to Ontario but it has recently been accepted by the Law Society of British Columbia.

It seems that lawyers in Ontario support articling in their rhetoric but not in their actions. In 2008, the Law Society of Upper Canada’s Licensing and Accreditation Task Force reported that that lawyers overwhelmingly wanted to retain articling. It also reported that there were only 1171 approved articling principals out of approximately 31,000 lawyers in private practice, government and corporate practice and other employment available to serve as articling principals. That is less than a 4% participation rate. The rest of the profession – including myself – is freeloading on the work of that 4% who are shouldering the burden of training the next generation of lawyers. If we believe in the need for practical training for new lawyers, we should all share in this responsibility.

Thus, out of necessity, the funding for an Ontario Legal Corps would come mostly from us, from lawyers. Under this proposal, each lawyer in Ontario would pay a $200 Access to Justice levy. With 40,000 lawyers, this will create 200 fully-funded Access to Justice Articling positions paying annual salaries of $40,000. In short, my idea is 200 articling positions for $200 per lawyer in Ontario. Or simply “200 for 200”. I think this is a fair price to pay to promote access to justice, train the next generation of lawyers and protect self-regulation.

The University of Ottawa proposed a similar idea in its submissions to the LSUC’s 2008 Licensing and Accreditation Taskforce as one of its nine suggestions that it made to that Task Force. It proposed instituting a “lawyer levy” that the LSUC would impose on the 30,000 lawyers who do not employ articling students in any given year contributed $100 each year, the LSUC could provide two hundred articling subsidies in the amount of $15,000 in any given year. Subsidies could be focused on both geographical and cultural areas that are currently underrepresented by lawyers. That suggestion was not given serious consideration at the time. It should be now.

But that 2008 proposal did not go far enough. The access to justice crisis worsens and we are back looking at articling only three years later because we need bold solutions. An Ontario Legal Corps is worth considering.

I couldn’t help being struck by the contrast between two seemingly unrelated events last week: Eddie Greenspan attacking his former client Conrad Black in the Globe and Mail, and the B.C. Supreme Court striking down money laundering laws insofar as those laws apply to lawyers.

In Federation of Law Societies of Canada v. Canada 2011 BCSC 1270, Madam Justice Gerow found that federal money laundering laws violate section 7 of the Charter to the extent that they apply to legal counsel and law firms. She further found that the violations could not be justified under section 1. Justice Gerow read down and severed those portions of the legislation that apply to lawyers and legal counsel. The Federation rode to this result on the strength of the sanctity solicitor-client privilege and of lawyers’ duty of loyalty to their clients.

In Saturday’s Globe and Mail, Eddie Greenspan was afforded a full page to rebut the attacks made against him by Conrad Black in his recently released memoirs A Matter of Principle. I read those memoirs cover to cover, and Mr. Greenspan has reason to be irked at how his former client has described him. Lord Black has many nasty things to say about most of his former lawyers, including Mr. Greenspan. This does not make Lord Black that different from many other dissatisfied clients. The difference of course is that Lord Black carries with him the power of the pen and of publication.