This week’s guest blogger is Rob Harvie, a family lawyer, Law Society of Alberta Bencher and member of the NSRLP Advisory Board. After numerous conversations about this topic over the last 18 months, I asked Rob to write the blog to kick off our theme for December “Rebuilding Public Trust in the Justice System” (Action Step #10).
Rob has consistently engaged with SRLs and others in commentaries on the NSRLP Blog, and is genuinely committed to developing an inclusive dialogue. Read on for an essay that spares none of us, names some hard realities, but is also a message of hope.
How do we rebuild public trust in the justice system?
First up – a lot of people need to check their egos and take a good, hard look in the mirror. Because from my perspective there is not a single player in the justice system who is blameless in how we got from “there” to “here” – “here” being an over-burdened system which is unworkable for many, many Canadians.
Let’s start with the obvious, the most maligned – the legal profession.
Checking our egos: the legal profession
Should lawyers shoulder some responsibility for the rising access to justice crisis? Setting our sometimes fragile egos aside for the moment, the answer is most certainly “yes”.
The first problem we need to acknowledge is the way we lawyers regulate and respond to risk. Lawyers deliver their services partly to answer the needs of their client, but to a great extent, to prevent getting sued or being reported to their regulator. As a member of a regulatory body, I can assure you that having to answer to your regulator is no easy task. Regulators take their job to protect the public very seriously. But, in doing that, there is a cost to the public.
Where the laws change so rapidly and continually, in order to forestall potential lawsuits, it is more prudent for a lawyer to do too much. Hence ever rising legal bills as lawyers struggle to turn over every stone in the discovery and research process. As well – and as many SRLs know – few lawyers are willing to engage their clients on a limited scope retainer basis. Doing less rather than more sets off that same warning about risk – while a client might hire you to only do “A”, you might also be obligated to do “B”.
Then there are lawyers who do not discourage frivolous litigation as long as they’re getting paid. And there are lawyers who simply over-charge for their service. And lawyers who fail to fully apprise their clients of the real possibility, or even probability, of loss.
Finally, I think that we lawyers have been encouraged by our law schools, our regulators, and perhaps even the public to take an overly paternalistic approach towards our clients. We take control of our clients’ issues and in so doing, adopt many of their problems as our own. This does a disservice to our clients – who need us as objective sources of guidance, not as surrogate parents or “BFF’s”.
My comments aren’t intended to further dump on a profession that I love, and to ignore the reality that – particularly in family practice, where access to justice issues are most acute – the vast majority of lawyers truly care about their clients. Family lawyers are amongst the lowest paid in the legal profession, but are still more likely to provide pro bono (free) legal service than colleagues in other sectors.
But the reality is that we could do more. We could be more honest and direct with our clients regarding risk. We could do more limited scope retainer work. We could demand that clients be given more autonomy and respect to determine the level of service they desire and need. And when dealing with SRL’s, we could start with the assumption that they are, like us, reasonable and respectful people under stress.
We could be more creative and less mired in the “traditional delivery model” of having all service delivered by the lawyer – less beholden and more outspoken to those who pressure us to deliver disproportionate levels of service that are costly for clients in order to minimize risk.
Checking our egos: the judiciary
Which brings me to the “big dogs” in the justice system, the judges.
While the work of our Supreme Court of Canada has been laudable, particularly the work of Justice Cromwell, in raising the profile of the A2J crisis in Canada, they have also been complicit in the problem. In creating “perfect” justice, the law has become more complex, and that complexity adds further to the cost. Does society benefit when you have better justice for 10% of the population but 90% of the population can’t afford to implement the directives of our highest court?
Perhaps the time has come to accept less “perfect” justice, delivered quicker and cheaper.
And there are more signs of paternalism towards clients. There is a subtle suggestion in some jurisprudence that clients are unable to define the parameters and limitations in the service they desire from their lawyers – such as with Family law agreements. Our Supreme Court has imposed a positive duty of due diligence upon lawyers and opposing parties to assure that domestic agreements are secured by sufficient disclosure and due diligence.
Seems like a good idea – until a party comes to a lawyer with an agreement in hand seeking advice on what the agreement means – only to have the lawyer say, “$5,000.00 please.” The lawyer explains that he or she has a positive obligation to delve into the finances of the parties, whether the client wants it or not. Better for the client? Maybe not.
Certainly the lawyer should explain the risk of not seeking further disclosure or examination – but if the risks have been explained and documented, not only should the lawyer not have to look over their shoulder to worry about being sued – but the agreement arrived at should be respected.
Clients over 18, not otherwise suffering from a formal disability, should not be treated as children or otherwise unable to enter into binding agreements. Current jurisprudence, and some provincial legislation suggests otherwise – and this costs clients money and some degree of respect for them as “persons”.
Checking our egos: the regulators
On to the other “big dogs” – the regulators.
Our respective law societies are properly charged with attending to the public interest – not the interest of lawyers. However the emphasis on “perfect” representation described above suggests that lawyers are best advised to “over-deliver” service to clients.
If you review our regulatory Codes of Conduct, they read like this: “Clients are basically unable to make rational decisions, so do not allow them to make their own decisions about the quality and nature of service they want.”
For example, read the Law Society of Alberta’s commentary regarding recently amended rules relating to limited scope retainers:
….When a lawyer considers whether to provide legal services under a limited scope retainer, the lawyer must consider whether the limitation is reasonable in the circumstances. For example, some matters may be too complex to offer legal services pursuant to a limited scope retainer. (See Rule 2.02(1.1)).
Think about that for a moment. Our regulator tells us it is OUR responsibility to determine if the matter is “too complex” to offer limited scope work. Like the client will be better off with NO legal assistance than SOME legal assistance when we accede to our regulator’s suggestion and refuse the limited scope retainer on complex matters. And what is “too complex”? Do you want to risk explaining that down the road to a judge – or would it be safer just to refuse the request to begin with? You see the problem.
Checking our egos: the public
Which brings us to the public. The public has an important part to play in the A2J dilemma. There is a widespread expectation that all problems should be solvable by the justice system. And that everyone should have a right to access it.
Understandably, when the public sees this “offer”, they want to take it up. But it is an unrealistic oversell of what the legal system can actually do.
The courts can only do so much for you. The problems created over many years of marriage are unlikely to be resolved in a courtroom. Your former partner is not going to become a better person because a judge tells them to. An order for support may or may not be enforced. Teenage children may decide to go live with the worst parent – regardless of what a judge said a year or two before.
The courtroom is not McDonald’s or Burger King – do not expect a drive-through window with a guaranteed result.
The public may see the overselling of the system as not their problem (although it affects them very significantly). But there are other limitations to engaging in the legal system that are specific to individual cases. There are two sides to every argument. To the public I say, please accept the possibility that you might be wrong in what you are asserting. Beyond that, understand the possibility that even if you are “right” there is still a reasonable chance you will lose in a court room. A bad settlement is MUCH better than a bad litigation.
Judges and lawyers and legislators are just “people”, which means they make mistakes. They have bad days. They have personal fears, biases and other issues that impact their work.
To engage the system ignorant of these realities is to perpetuate the problem. This is difficult enough with represented litigants. The problem may be worse when a self-represented litigant doesn’t have their own lawyer to say, “hold on.” Legal advice via “Google” will give an unrealistic picture of an uncertain and imperfect system and an often unrealistic appraisal of their chances of success.
What we don’t have that we need to rebuild public trust in the justice system?
- A healthy humility that will enable all of us to ask the question, “What do I bring to the problem, and how can I reduce it?”
I have tried to suggest some answers to this question above – for lawyers, judges, regulators and the public. What have I missed? Is any of this unfair? My goal here is equal opportunity responsibility-taking – is that reasonable?
- The necessary curiosity and respect to reach out to those whom we don’t understand, and ask, “Please explain where you’re coming from”… and to actually listen.
I have talked to lawyers who complain about SRL’s, and have explained that what they may take as combativeness or unreasonableness is likely fear, of doing battle “unarmed”. So – why increase their fear by threats and bravado – thereby reducing their ability to engage on a calmer rational basis? Why not try treating the SRL with respect and a degree of empathy? The lawyers’ response – “OK, that makes sense, let me try at least starting with kindness and respect.”
- Invite SRL’s into the discussion. They are now a massive player in the system – and, yet, they don’t get invited to the conversation.
This relates to my earlier point about treating the general public as children or dependent adults. “We’ll take care of you – trust us – don’t worry your little head,” is the unspoken mantra of current justice stakeholders.
I think it’s time to treat the public like adults. Give them the hard news – there is no Santa in the court system – and let them respond to that reality.
The justice system is an imperfect beast, and so are each of its stakeholders. Each of us brings something to this problem. I believe that accepting this will help restore trust. As long as each of us is just pointing at the other actors, we are not going to build trust.
We need to understand that in a very real way, we’re all in this together.
Rob Harvie
Rob Harvie, your article above, is typical obfuscation by a Bencher, i.e., blame everybody so as to defuse the negligence of Canada’s law societies which is that they have done nothing during all of the decades over which this “unaffordable legal services problem” has been developing. They are the culprit and the cause of the problem, which is accurately defined as being, “the majority of the population cannot obtain legal services at reasonable cost” (the analytical literature provides this definition). SRL’s have been very visible to everyone for several years, but their percentages continue to increase with judges’ warnings of their courts grinding to a halt. The Chief Justice of Canada, Beverley McLachlin, has made many speeches to prominent groups with the theme that, “the cost of legal services should not be so dear,” beginning at least as far back as 2007, but the problem continue to grow worse. Nothing has been done. There is no program whose specific purpose is to end the problem, instead of merely providing less competent substitutes for lawyers’ services.
As a result, young lawyers and their families have a very poor economic future, as forecasted by several authoritative sources, including the CBA. In sharp contrast, Benchers, being senior lawyers with established practices, or very secure institutional positions, are not personally suffering. And comparatively soon, almost all will be comfortably and happily retired.
So, answer the following 5 published propositions Rob Harvie (published by me on the U. of Calgary’s “Access to Justice” blog, August 12th (Part 1); & August 14 (Part 2); and on August 10th on the SSRN at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2478303.
There are five propositions that Canada’s law societies must accept if their statements as to what they refer to as their “concern about the access to justice problem” are to have credibility:
1. The precise statement of the nature and extent of the problem of unaffordable legal services is: “the majority of the population cannot obtain legal services at reasonable cost.”
2. The duty to make affordable legal services available to the population arises from the law that requires the law societies to regulate the legal profession and the monopoly it has over the provision of legal services. For example, in the province of Ontario, that duty of the Law Society of Upper Canada is made express and precise by the statutory duties created by the Law Society Act, s. 4.2 of which states:
“In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:
(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.
(4). The Society has a duty to act in a timely, open and efficient manner.
(5). Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized. 2006, c. 21, Sched. C, s.7.”
[Other law societies bear the same burden and duties, regardless what their local law society-empowering legislation makes or doesn’t make express. Dare they possibly say otherwise?]
3. Therefore, if the problem of unaffordable legal services exists, it is the law societies’ fault that it exists. If the law societies had been sufficiently responsive to the population’s need for legal services, the problem would not exist.
4. Therefore, it is the exclusive duty of the law societies to solve the problem of unaffordable legal services.
5. If Canada’s law societies cannot make legal services adequately available to the population that are competently and ethically provided, and affordable, they have no purpose. Therefore a different management structure has to be put in place that can regulate the legal profession so as to make affordable legal services available.
Canada’s Benchers will never accept these 5 propositions, and certainly not confess their guilt as the problem’s cause. Confession is the road to redemption; denial, the road to despair. But our Benchers will be happily retired, leaving younger lawyers to despair the future that the Benchers have left them.
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Because of the rapidly increasing volumes and complexity of laws, people have never needed lawyers more than they do now. Therefore, if legal services were affordable, lawyers would have more work than they could handle. Instead, Canada’s legal profession and its law schools are contracting when they should be expanding. Society and the legal profession are going in opposite directions. The part-time amateur management of our law societies provided by their Benchers is the cause. 19th century management structures cannot adequately serve a 21st century world with legal services, nor its legal professions’ duty to provide them.
Therefore, I cannot in good faith, recommend to my grandchildren that they become lawyers. Law societies are to blame. So young lawyers of Canada’s law societies, cut your loses; ask government to get rid of them, now.
For in-depth analysis of these ideas, and of the problem’s damage caused, and of its causes and solutions, see the several “access to justice” articles that I have posted on the SSRN (Social Science Research Network, for free download of .pdf copies): Visit my SSRN author’s page, at: http://ssrn.com/author=1398484
And for summaries, visit my Slaw blog author’s page at: http://www.slaw.ca/author/chasse/
— Ken Chasse, member LSUC (Ontario, since 1966), and LSBC, since 1978).
As both a SRL and a lawyers client I appreciate disclosure of what the stakeholders are really thinking and what the motives are. I also appreciate when the stakeholders know and understand my thoughts and motives. The blogs on this forum are excellent! The more honest and knowledgeable we all become the better!
Since SRL are the majority of those seeking justice, SRL should not only be “invited” to have a say, SRL should have a definitive say in the final outcome!
It all comes down to who is serving who and why? what are the true motives? Is it money and or power or is it serving the client? Personally I believe that it is admirable to serve someone else’s needs but getting paid to serve that other persons needs takes it to a whole new level and this level has its risks and rewards which no paid servant should be able to shrink away from. Governing Law Societies are often mentioned in blogs but I do not believe that many stakeholders are aware of the “Insurance Societies” that are behind all of these “professionals” and their societies. ie: (LawPro in Ontario) and the simple fact that the shareholders are also those that are insured. What do the SRL have???
On the other hand, what is even more scary is that in a democracy 51% of the people could force the other 49% to do their will. Personally I am a much bigger proponent of the power of seeking Constitutional Freedom than of democracy. In a democracy the 49% become enslaved. Is this really fair or just?
Also in a democracy those that have power and privilege focus on their priorities while the remaining part of society has all sorts of democratic experiences and debate that goes nowhere important. This “bait and switch” happens every day in our society in both politics and business and law and yes even in charity.
As for the judges and the lawyers and government employees, they need to show a lot more respect since more and more they are simply redistributing the wealth that others have worked really hard to create and preserve.
But for the time being our legal system is pretty brutal because like the old analogy, It is akin to 2 hungry wolves and a sheep having a meeting to decide what’s for dinner? This scenario NEVER ends well for anyone because since I am a farmer and not a lawyer I am fully aware that even when the sheep are all gone, the wolves will devour each other!
Very impressed with your article, especially love the line- there is no Santa in the court system….Shannon
Shannon and Delmer – as always, continuing the coversation is I think helpful.. so, thanks for your thoughts!
Rob; an addendum to my blog above
Bad News AND Good News
I was shocked when I actually looked up the word “client” in online dictionaries. We should ALL be aware of this BEFORE we become one. Whenever we are called “clients” and not by our names it makes my skin crawl.
http://www.merriam-webster.com/dictionary/client stipulates that CLIENT is 1 : one that is under the protection of another : DEPENDENT
http://www.merriam-webster.com/dictionary/dependent stipulates that DEPENDENT is : decided or controlled by something else : needing someone or something else for support, help, etc. : addicted to alcohol or a drug
http://www.oxforddictionaries.com/definition/english/client stipulates that CLIENT is: 3 (In ancient Rome) a plebeian under the protection of a patrician.”” and “Origin late Middle English: from Latin cliens, client-, variant of cluens ‘heeding’, from cluere ‘hear or obey’. The term originally denoted a person under the protection and patronage of another, hence a person ‘protected’ by a legal adviser”
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I just wanted to let you know that I do not consider you (a lawyer) as an enemy. I deeply appreciate your efforts to help! In all my experiences both in business and unfortunately more recently as a Family Law/Appeals litigant I am acquainted with many lawyers and quite a few judges and I deeply respect some of them. Since you came onto the SRL forum I felt I should give you my perspective…(“disclosure”) People like me really appreciate your interest and concern! After an average life of some 45 years,one of the most difficult things I have ever dealt with is when I was forced to go to court to protect the bulk of my property (everything I have ever worked for since I was 13 years of age and out of school) and also my inheritance from both my dear deceased parents, I was up against a avaricious and vexatious party and a lawyer who was “sharp” principled. This person and their lawyer became my enemy no doubt. The court was acutely aware in my case that I had legal representation for years prior to the trial (and I lost representation due to no fault of mine)…but because in the end (as SRL) I was forced to go to trial (adjournment motion by new lawyer denied) I stood up for myself and fought hard and low and behold the court turned on me personally and acted and ruled being biased against me. The situation I found myself in was VERY difficult to deal with on appeal even with a 2 top lawyers from a top big city firm representing me. My situation was so ugly that the 3 member appeals court “crafted” their ruling in an obvious attempt to satisfy the “clients” without a brand new trial being ordered or publicly exposing the original trial justice or the system for the errors and failures. I should have NOT been forced to fight as hard as I did…the whole thing was/is outrageous (unconscionable in your lingo) I did NOT deserve any of this or ask for this and now I am ashamed and disgusted and outraged all at the exact same time!!!
1. Respect is critical for me and if a lawyer/judge shows respect for me and my circumstances I do my best to act respectfully in return. Respect MUST be earned by judges and lawyers since we are the paying public. In many cases we are paying for both sides of a dispute. For the average person it is difficult paying taxes but when we are forced to pay large fees out of our after tax dollars, to just get a spot in line leading to the table, this is where the truth should set us free. Unlike you lawyers we do not have insurance if we make an error and even if we did, I am sure the fees would be a much bigger percentage of our gross and net income since SRL would not be able to own their very own insurance company as the lawyers and judges etc. do here in Ontario.
2. I do NOT think you lawyers are the enemy of SRL but we are unfortunately competing in the same arena for attention and justice and the officers of the court stick together when a conflict occurs with the client or a SRL. Furthermore you guys chose to be in court and we would have preferred not be forced there. What makes this quite dramatic is that in Ontario (as per this forum) some 65% of the Family Law Litigants are SRL. SRL litigants are now in the majority and yet the minority still have all the say and influence. It is a systemic and societal problem in addition to our adversarial system being been akin to being forced to go gambling with our lives savings at someone else’s unfriendly “house”. As my wise father always said “in order for there to be a real winner once in a while there has to be a lot of losers” . (oh and I will omit my 30 pages worth of costs awarded arguments here)
3. The SRL did NOT design the system the system then or now, and so we simply and naively expect it to be fixed by those who created it and maintain it and derive their income from it. From what I have heard and witnessed, SRL are often treated very similar to the bull at a typical “bullfight” (an unfair and cruel fight) I have never heard of a case when the crowd turned against the matador but I frankly do NOT think it would end well. It is a bit of a cruel farce no matter what happens. I am nowhere near a perfect person, however having experience as a farmer I can tell you that most 2000 pound animals are more fair and kind and gentile than most individuals nowadays.
4. I do NOT think that it should take all those years (all that expense) to become a practicing lawyer and I mean absolutely NO offense to Julie M. I think she is absolutely awesome for her advocacy. I personally think that all fees from professional courses to trial lawyers fees should be 50% of what they are today. I am ok with typical courthouse costs but the level and attitude of service must be greatly enhanced and updated. In addition I would vote for far less regulation and less laws rather than more. The 10 commandments keep all of us busy just for starters. Public servants making more than the median middle class citizen should be voted in by the public and not hired or appointed. Do not feel bad because the average aware persons view of their current political representation is valued at far less than this. I am completely convinced it comes down to who is responsible to serve whom!!! (class action lawsuit???) Personally I think that we must first take a lot of the profit motives out of “our systems” to fix the most outrageous problems that seem to be thriving and seek to replace the worst culprits with wiser older individuals who are completely community oriented.
5. Unfortunately the more I observe and the more aware I become, the more I am certain that our systems must be literally turned “inside out” for them to actually work for “we the people”. In addition I think those inside our system that are greedy and power hungry should be heavily taxed to expose their true motives. For those “inside” one of the systems that have a “good heart” and are motivated to give excellent service to the people, I think that we the people will become aware who you are individually and we will rally around you as you seek the radical and positive reform for the people you serve.
6. Those in our civil society that think they are worth 5-10 times the average persons wages should not demand to be paid upfront by their “clients” unless there are fraud issues or a genuine credit issue and or they execute a performance contract with a sliding scale money back guarantee based on performance and or outcome . ( a nice warm fuzzy dream)
7. I do not like politics as the puppet masters in our society make ALL the important decisions (to them) while the “right” AND “left” and the rest of us are “engaged” in artificially induced infighting and debate of issues that are of less importance. Most of our systems are engaged in wealth distribution and these arbitrary practices are extremely hypocritical since the privileged insiders have immunity at the same time. I do NOT advocate socialism or communism, heck I am not even a big believer in a typical democracy because 51 % could force the other 49% to be their slaves. All government and all of our systems must be decreased in size and regulations and what we are left with must be efficient. Freedom and Truth and Respect for our fellow humans must be embraced and rewarded before we will achieve justice. History AND Math (the numbers) give us the most accurate prediction of where our society is going. I am completely convinced that the problems are severe and critical in our society/our systems. I know one thing for sure we are ALL in BIG TROUBLE if nothing changes!
8. Worst comes to worst, turning things inside out is better than upside down!
I hope you can respect my rants since I just want (wish for) something much better than we have today in Canada.
Helpers are Hero’s… Please keep HELPing Rob!