Lawyers as Storytellers or Lawyers as Whiners?

We lawyers have done a good job convincing ourselves, convincing the courts and convincing legislators that we are more special than other professionals. But are we really more deserving of the special protections and privileges that we have convinced others to afford us? Increasingly, those special privileges are being called into question around the globe and it is only a matter of time until the searchlights focus their lens on us here in Canada. I fear that we will be found to be wanting.

This occurred to me during a recent panel discussion on “The International Bar Association’s Gatekeepers Project: Contemporary ethical challenges and opportunities facing lawyers in Canada and abroad.” It was part of the University of Ottawa’s Conway Professionalism Speaker Series which enabled my colleagues Professors Amy Salyzyn and Alain Roussy to bring together three members of the IBA’s Gatekeepers Project: George Artley (IBA), Ellyn Rosen (ABA) and Frederica Wilson (Federation of Law Societies of Canada).

Referring to international attacks on lawyers for their involvement in such recent scandals as the Panama Papers and the Pandora Papers, the panel members described how lawyers have “a storytelling problem.” They critiqued lawyers’ inability to tell a convincing story about the critical role we play in ensuring the rule of law and otherwise positively contribute to society. They noted that in 2022, such attacks had prompted the IBA to issue a Statement defending lawyer-client confidentiality / privilege. They acknowledged that issuing statements was unlikely to be effective and that was one of the motivations for the creation of the Gatekeepers Project.

It struck me that as lawyers we have been extremely effective in telling a compelling tale to some actors and completely clueless in telling a convincing story to others.

In Canada, lawyers have been much more effective (or faced much less pushback?) than in other jurisdictions. Canada has become an outlier in the common law world in terms of fidelity to self-regulation. Former University of Calgary Professor (and now Court of King’s Bench Judge) Alice Woolley called Canada arguably “the last bastion of unfettered self-regulation of the legal profession in the common law world.”[1]

We also have the strongest protection for solicitor-client privilege in the common law world and that has led to the Canadian bar’s unparalleled success in staving off the application of federal money laundering regulations and other attempts to override the privilege.

So we lawyers have been incredibly successful in telling our story to judges. But we should hardly pat ourselves on the back for this since all judges were lawyers. We’re preaching to the converted.

We’ve also done surprisingly well in telling our story to legislators. For a long time this could perhaps be explained by the high percentage of lawyers in politics. But decades of decline mean that our colleagues no longer predominate in politics. We’ve also been aided by the fusion of the roles of the Attorney General and Minister of Justice which means that in most instances the minister with policy- making responsibility for the regulation of lawyers and for providing legal advice on all government enactments is a lawyer.

However, with the decline of lawyers in politics and the rise of populism, lawyers have good reasons to worry about the continuation of their privileged status.

The public is likely to grow increasingly frustrated with us, with judges and with the administration of justice. Especially when it comes to access to justice.

When the time comes – and it likely will – when our special privileges as lawyers come under assault, it may prove difficult for us to survive exacting scrutiny.

We do not necessarily compare well to other professions, especially when it comes to our claim to be a learned profession. When it comes to lifelong learning, we are more whiners than winners. Our measly 12 hours of CPD simply does not measure up well compared to other professions.

Let’s start with accountants. CPAs must complete at least 120 hours of CPD in each three-year period. That is more than three times what is required of lawyers!

And what of doctors? Family doctors have to complete at least 250 hours of continuing medical education in each five-year cycle, at least half of which has to be certified. So family doctors are required to complete an average of 50 hours of continuing education, accountants 40 hours and we lawyers are whining about 12 hours, of which only a handful have to be accredited.

I’m not sure we are living up to our billing as being “a learned profession”. And this is only a relatively minor issue compared to access to justice.

We have been talking to ourselves about access to justice for nearly two decades. Yet it is not clear that the situation has gotten any better despite the many task forces, committees and speeches. Perhaps not surprisingly, speeches and committees have not improved access to justice for Canadians. On access to justice, we also do not have a very good story to tell.

Lawyers need to worry more about improving our story before we worry about doing a better job telling our story.

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[1] Alice Woolley, Understanding Lawyers’ Ethics in Canada (Lexis Nexis, 2011) 4.