Checking Our Egos and Accepting Our Part is Fundamental to Restoring Public Trust in the Justice SystemNSRLP
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.