A Week of Contradictions: Why I Sometimes Feel Despair About the Profession I Love

A Week of Contradictions: Why I Sometimes Feel Despair About the Profession I Love

Last week I received this year’s Mundell Medal for Legal Writing – a co-recipient with with my colleague, Mr. Justice Todd Archibald – from the Attorney-General of Ontario.

This was a great honor, which was both genuinely gratifying – but also conflicting for me.

Because after more than 30 years of offering “loving critique” of the legal profession and the justice system, I now find myself in more despair than ever.

In the last few years, each time I attend a conference of lawyers, or a celebration of our profession, or an honoring of its most elevated members, I get the same feeling (I always hope I will not, because it is a very uncomfortable feeling, but I do).

I find myself looking around at so many good people who want to do good work and feeling perplexed and confused. I wonder: do they really understand just how remote and irrelevant the work of lawyers has become to large swaths of the public?

The chasm that divides us

I truly believe in the ideals of our profession. I believe in its advocacy for those who need a voice, and its amazing ability to effectively question – and what’s more, to change – how we frame the norms of our relationships as individuals and within our communities.

But I also recognize with shocking clarity the chasm that divides the profession and the public.

And I wonder – how will we ever bridge that chasm between lawyers and ordinary Canadians (regular folks, not banks, corporations, or government) if we cannot hear to what they say they want and need?

Are we so indoctrinated into a narrow rights-based view of our profession that that we can’t respond to what people are telling us they need and want from lawyers?

I hope not, because that would be a miscalculation with serious consequences.

It’s not the people in the legal profession who are the problem.

It’s what the profession has become.

The following are facts:

Most ordinary Canadians can no longer afford lawyers. They are telling us – “we cannot afford you” and “please change, please help us but do it differently”. But – we don’t seem to really care that much. No one talks about it at gala dinners. Instead the talk is of beating back moves to expand family legal services to (more affordable) paralegals.

Most ordinary Canadians do not understand why lawyers should be paid $360 an hour, and pro rata every fraction of an hour for every single task (Canadian Lawyer magazine’s average Going Rate 2015). Many doubt that what they will gain from consulting a lawyer will be “worth” that expenditure. Yet many family lawyers think that Ontarians should not have access to paralegals to assist them with family law issues (when more than half are without counsel) because “lawyers are worth it, and paralegals are not.”

With my client hat on

Twenty-four hours after receiving the Mundell medal, I was sitting in a conference room in an upscale law firm in the City of London.

I was there to meet with senior litigators representing the Anglican church and its insurer, Ecclesiastical Insurance Group, to pursue the second stage of my settlement agreement made last month to end my lawsuit against a priest for a year of sexual assaults that took place when I was a teenager.

My settlement agreement requires the development of a new claims protocol for those bringing sexual assault claims against the church. My goal is to accommodate some of the realities of survivors of sexual abuse within a revised investigation, evaluation and settlement process; to avoid the re-traumatization of survivors who bring claims forward.

I meet with those who manage and direct these files as a peer. On a technical level, I understand their work very well. I speak their language. I understand the constraints and pressures on them. I know how they think – strategize, rationalize, wager – when they defend claims.

Yet what I realized, five hours later, was that they could not hear my voice (as a former litigant, albeit a slightly unusual one) either.

  • Many lawyers cannot hear their clients when they are questioned or challenged – they can only hear their own justification or rationalization (that is, if they give one – I probably know how to press harder for explanations than most clients).
  • Many lawyers do not understand how their decisions – whether to plead in a particular way, to rebuff settlement openings, or simply to default to a routine pattern of action– can impact their clients’ emotions. Or if they do, they don’t think that it is really important – empathy is not part of their job description.
  • Many lawyers do not see being “stuck” in a tautological justification – “we have to do it this way because every else does it this way” – as a moral choice (which it is).

Everyone at the meeting was considerate and polite to me – but they could not hear me in that plush conference room.

What chance does that give lawyers of hearing clients less cognizant than I am of the culture, the norms, the rules and the justifications of legal practice?

What can you do?

The legal profession is full of good people, at every level. Smart people. Many who entered the profession because they cared deeply about ordinary people, and at least in the beginning, really cared about understanding their needs.

But every lawyer gets battered and buffeted and ultimately reshaped by the norms of the profession that places privilege over public interest, righteousness over understanding, expertise over a journey of learning, and status above everything.

The bridge across the chasm separating the legal profession from ordinary Canadians is deep, courageous introspection.

The antidote to being stuck in old patterns is accepting that we need a new way of thinking about the work that we can do to enable us to truly relevant, effective, significant allies for those who need us.

The antidote to despair is action.

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Comments (8)

  • ntjoshi

    Yes, the law profession has lost touch with the society and its duty towards the public. It is driven by only by greed and money and willing to jettison its values, professionalism and moral obligations in pursuit of more money.

    I have been looking for a Constitutional lawyer for over two years who could represent in the Federal Court to protect my right to redress for unjust dismissal and my Charter right to equal protection of the Canada Labour Code. But because I am not a corporation or big bank with deep pockets no lawyer is willing to represent me. That is the legal profession in Canada.

    April 27, 2016 at 2:29 pm
  • sudokutea

    Your word righteousness stuck out like a sore thumb. righteousness = “morally justifiable behavior”?!?!
    Morality is totally absent from the legal profession. I blame judges. Obviously the buck stops with them.
    Everyone is abuzz about how the US Supreme court is tied with 4 democrats and 4 republicans.
    Obviously morality and justice means nothing at the highest level – how can “a reasonable person” expect unbiased decisions? Judges in FAR TOO MANY cases simply ignore “good conscience” want proof? J’ACCUSE!

    April 27, 2016 at 2:53 pm
  • Ken Chasse, member LSUC & LSBC.

    To solve the problem of unaffordable legal services, SEE:
    (1) “A2J: Preventing the Abolition of Law Societies by Curing Their Management Structure Defects”
    Slaw, September 25, 2015,
    at: http://www.slaw.ca/2015/09/25/a2j-preventing-the-abolition-of-law-societies-by-curing-their-management-structure-defects/
    (2) “Access Justice—Canada’s Unaffordable Legal Services—CanLII as the Necessary Support Service” (on the SSRN)
    at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2365818

    The cause of such problems is the failure of Canada’s law societies to attempt to solve the problem of unaffordable legal advice services. It is a human-caused problem capable of a law society-caused solution. That is shown by the very impressive accomplishments by law societies by creating: (1) CanLII; and, (2) the mobility agreement that enables lawyers to work in the other participating provinces without membership in the law societies of those provinces.

    The legal profession itself is a major victim of unaffordable legal services. At a time when the population has never needed lawyers more, the profession is shrinking and has priced itself beyond the majority of the population. If legal services were affordable, lawyers would be overwhelmed with work.
    So, lawyers should pressure their law societies to begin trying to solve the problem instead of providing only palliative care (alternative legal services) rather than trying to cure the disease. Their response is one of, “cutting the cost of legal services by cutting the competence of the person who provides the service.” It is a confession by law societies of failure and inability to perform their legal duty to make legal services adequately available.
    If law societies continue to refuse to perform that duty, they should be abolished and their regulatory duty and powers given to a new agency that will be more responsive to the democratic process. See the Clementi Report (U.K., 2004).
    The continuation of such failure and breach of duty means that law societies can no longer justify the monopoly they have been given over the provision of legal services.
    Law societies are like an aristocracy that has outlived its worth and is therefore content to hand out charity instead of providing strong leadership in solving the most serious problem the profession and the population has ever suffered in regard to the provision of legal services.
    This problem and the great power of communication provided the population by the social media, the news media, and the pressure groups, for people to discuss how their lives have been severely damaged by their inability to afford the help of a lawyer, will eventually result in the abolition of law societies as they presently are.
    Law society management structures are those of the early 19th century–management by part-time amateurs. It cannot provide the necessary competent management required in the 21st century.

    If we care enough about the future of the legal profession we will insist on changes to the nature of the position of a law society bencher, and to law society management structures. If there is no adequate response, we should seek the abolition of law societies. If you don’t want to take such action, then go on being a willing victim as a lawyer facing a very poor economic future for the rest of your career–you and your family.
    See the solutions in 2 above-cited articles.
    — Ken Chasse (“Chase”), member, LSUC (1966); and, LSBC (1978).

    April 27, 2016 at 3:53 pm
  • Allen

    Please tell me about your despair after I relate this court room incident. A master in Calgary just brush aside the law and did as he please. That is the norm but no one seems to believe me when I say so or when I say judge Robin Camp’s now infamous postering is the norm rather than the exception

    So this poor SRL plead the Court of Queens Bench Act that says a master cannot hear certain actions without the consent of the parties. She politely declined to give her consent. The Master simply told her although you do not give your consent I am going to hear it anyways. It was a strange SJP application by a questionable applicant. Whern the SRL told the court she has no dealings with that applicant and does not know them Master retorted that is a typographical error (yes he made the argument on behalf of the lawyer present). When the SRL pointed to her filed affidavit that states as far as she knows the rightful party got paid. Master ignored that too. So he called out for a lawyer to come help her. One came forward.The Master adjourned the hearing and apparently seized the case. Now I do not know that masters can seize a case. What is more if a master has to adjourn a SJP then it is PLAIN AND OBVIOUS THAT it is NOT plain and obvious that the defendant has no case or there is no triable issue hence it is not proper to consider the SJP and must dismiss it, but not in that court by that master.

    The amicus (rather court invited lawyer turned out to be more part of the clique. He asked the SRL nothing but went straight to the other lawyer asking how much more he wants (above and beyond what was already agreed by the parties and paid before the strange application). The Amicus lawyer definitely was just there to help the other lawyer. He even wanted the SRL to consent to a second adjournment but she refused. Well the master was to make a very ABSURD RULING. he said.
    It is going to cost the SRL more to go to trial (Not reason to grant SJ)
    The lawyer said he would file the evidence in support of the application the next week but the master should grant the order this week AND HE DID! ( a reason to dismiss the SJP but he did not)
    The lawyer represents a corporation and therefore does not need specific evidence (you read right!)

    What the master did was blatantly abusive and out of order including that he has no jurisdiction to make such an order

    How about that for despair? AND where does this type of conduct leave SRLs or leave the justice system?

    With that order the SRL now has cause to sue the party in whose name the SJ was granted though we are not sure who the applicant is. I could go on and on but rest assured the justice who will hear an appeal of this order will do ABSOLUTELY NOTHING!The Chief Justice nor the Judicial Council will do nothing either. The Attorney General will do nothing either nor will the legislature nor the parliament. How about that for despair?

    April 27, 2016 at 5:54 pm
  • Brian Chutskoff

    Julie: Well written of course; but, obviously, sincerely-painful, deeply-introspective, irrevocably-truthful & typically-courageous. Thank you.

    April 28, 2016 at 3:45 am
  • Brian Chutskoff

    Deeply-introspective, sincerely-personally-painful, irrevocably-truthful & typically-courageous of Dr. Julie Macfarlane as this mature-democratic nation’s (nearly solo) leader & tireless advocate on behalf of Canada’s tens-of-thousands of SRL’S. Thank-you Julie! Brian Chutskoff

    April 28, 2016 at 5:37 am
  • Ontario lawyer despairs that the legal profession places Privilege over Public Interest | Donald Best.CA

    […] Julie Macfarlane: Why I Sometimes feel Despair about the Profession I Love […]

    April 28, 2016 at 1:44 pm
  • Karin Litzcke

    The antidote to despair is indeed action, but unless it is effective action, the despair will win in the long run. I come at this from training in the management field, and to me it looks like a situation where information or good intentions cannot overcome the forces of the existing incentive structure. Changing the incentives will change behaviour overnight (or at least quickly and effortlessly). In contrast, pressuring directly for change while leaving the incentive structure intact is a fruitless endeavour. One wonders, then, why people keep doing it that way. The answer is: the incentive structure. I don’t mean to impugn any holders of such positions, because the law needs academe, but the unfortunate truth is that successful change (“done dirt cheap”) won’t sustain professorships, a series of annual conferences, resume-padding committees, or endless fodder for the journals industry. Data and understanding are very important, but they can become an industry of their own as vested in the status quo as the field itself is because the incentive for actually achieving goals is not there.

    I think law will need the cross-pollination of ideas to achieve successful change in a reasonably harmonious fashion. I’d encourage you to consult with people in your business school to get a leg out of despair – the tools exist!

    April 28, 2016 at 5:07 pm

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