Today’s post is written by Julie Macfarlane, on behalf of the NSRLP.
If you asked a member of the public what they consider to be the most important issue facing the legal profession in Ontario, their answer will be some version of the following:
“Making themselves relevant. Making themselves affordable. Showing the public how they can serve the public.”
But for members of the profession, apparently the most pressing current issue is whether they should be required to promise to support and protect equity via a Statement of Principles, as opposed to making the same voluntary commitment.
This is a distinction that few outside elite professions and academia are going to spend time fretting about. Particularly when the core idea is eschewing unfair discrimination and the perpetuation of historic injustices.
This esoteric debate has become so heated that it consumed the Law Society of Ontario’s April election, and will dominate the upcoming June 27 Convocation meeting. (“Convocation” is the meeting of the governance representatives of Ontario lawyers who are members of the Law Society of Ontario.) There are two motions calling for the rejection of a mandatory Statement of Principles, making this a proxy vote on the leadership of the Society (see below).
The Statement of Principles
The debate over whether lawyers and paralegals in Ontario should be obligated tocreate an individual statement of principles respecting equality, diversity, and inclusion captures the navel-gazing of some in the legal profession in Ontario, while Rome burns down around them.
NSRLP believes that all members of the legal profession should be expected to respect equality, diversity, and inclusion, and held to account if they do not. But this debate is not over the content of the principles, nor is it about whether or not they are implemented in practice. This is not a debate about real-world practice, people, or justice.
The statutory mandate of the Law Society of Ontario is to function in the “public interest”. The public interest requires that the legal profession respect all members of society, not just a privileged few. The arguments of the opponents of the Statement of Principles does not feature any consideration of “public interest”. Instead, their focus is on themselves and their points of “principle”. Their principle appears to be claiming the right not to have to do something, even though that something (supportingequality, diversity, and inclusion) is something that all professionals would say they support.
The Statement of Principles argument feels like an echo of issues playing out elsewhere, where the assertion of abstract “freedoms” – here the “freedom” to ignore the public interest and focus on the profession’s own interests – are used as a distraction from what is most important and urgent to most people.
Real priorities for the public
But what makes the current focus on the Statement of Principles even more alarming is that the legal profession appears to be fiddling while Rome burns.
The idea that in 2019 – with more than half the people in family court coming without a lawyer and without the funds to pay for one, sweeping Legal Aid Ontario cuts, increasing public disillusionment with the fitness of the legal system, and despair felt by users of the system at all levels– the Statement of Principles should be the most talked-about issue among some members of the legal profession is just wrong.
This debate reinforces the public’s perception of the profession as self-serving, out-of-touch, and increasingly irrelevant. The Law Society of Ontario is fiddling about while Rome is in flames. It is arranging breakfast dates on the deck of the Titanic. The house is on fire and the LSO is doing hospital corners in every room.
LSO leadership
Malcolm Mercer, the current Treasurer of the Law Society, knows this too. At NSRLP we have seen Malcolm reach out to members of the public who are forced to represent themselves many times in the past year. He is the first Treasurer to do so, and his efforts are hugely appreciated by SRLs. Listening to SRLs is just part of Malcolm’s effort to refocus the Society on its public interest and Access to Justice mandate.
The bargain of self-regulation for the legal profession is that they will govern themselves, but do so in the public interest. This “freedom of expression” debate would be a waste of energy even if the public interest were served by the regulation of the profession in Ontario. But it is plainly not. The public interest requires access to affordable legal services. It requires lawyers to be available to protect and defend public rights and freedoms, not squabble about their own perceived abstract slights.
To everyone who can influence the outcome of the vote at Convocation on June 27: please don’t get distracted by the Statement of Principles and spurious arguments against it. Please consider using your position, whether or not you have a vote at Convocation, to show the Ontario public that their interests and needs are most important to you. If you place the public interest first, your position on the Statement of Principles will be obvious. And you will support a Treasurer who is not just a spectator, but is in the game, talkingto the Ontario public about their interests.
The NSRLP knows that there are Ontario lawyers on the front line striving to provide accessible access to justice. Lawyers who are devoted to serving the public, and who put public rights and freedoms over narrow self-interest. We hope that they are properly represented in their governance organization.
The Statement of Principles issue is a dog-whistle situation designed to distract from the fact that the Law Society is useless and self-serving. It is in a gross conflict of interest and provides no recourse for dealing with dishonest and incompetent lawyers, and despite the self-serving rhetoric about how honourable the profession is, the smell of rot can no longer be ignored.
Why should anyone have to go to court to recover fees paid to a lawyer who misses limitation periods on not one but several files and causes their client huge costs awards, not to mention the fallout of not having had their case heard fairly?
The Law Society is a corporation that controls LawPro and TitlePlus, both corporations. It also had a huge hand in creating the Land Titles computer system that is now facilitating massive land titles and mortgage fraud. Thousands of people have lost their properties and had false mortgage charges put on their properties by lawyers — that again is just brushed aside.
Self-regulation in any field DOES NOT WORK for the public, ever. The commercial system we are burdened with must end and judges must be appointed by the People before anything will change.
Julie…as always well reasoned and presented. I totally agree with your assessment. Those of us on the true frontlines need to keep your message at the forefront.
Margaret Capes
Community Law School
Lawyers are not well-enough trained. They simply don’t know enough. They charge as if they have the knowledge of a highly trained specialist when they are broadly trained generalists. A good understanding of law requires PhD level knowledge and training; most lawyers barely rate a BA.
Lawyers don’t write well enough. They are warriors of words who make gross errors in spelling, syntax and grammar that can have huge implications and then send a bill for $5000 for the favor of doing so.
Lawyers take on too much work in order to make fabulous amounts of money. So they don’t do enough research and reading in their specialization and not nearly enough in related areas (e.g. mental health and the 2017 SCC ruling). They’re spending too many hours billing clients and not enough keeping up. They use the same tired case law and fail to read the landmark cases and related areas of law.
No one in the general public cares about their position statements. We just want good work and representation. it’s not being provided, and I, for one, am tired of the arrogant and smug, badly researched, prepared and written representation that lawyers want to ding me $400/hour to receive. I’m not paying it.
Not only the members of the legal profession but also the members of every profession including medical profession should be expected to respect equality, diversity, and inclusion, and held to account if they do not.
Because, recognition of the inherent dignity and the equal and inalienable rights of every person is the foundation of freedom, justice and peace in the world, and it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province. (Preamble of the Ontario Human Rights Code)
At this point, I don’t care if they think I am equal and wish to treat me with dignity…all I want is half-way decent legal service and a clear, unobstructed means of recourse when I don’t get the service I paid for.
As long as LawPro can torture you for years when you try to recover the fees and costs awarded against you when a lawyer misses a limitation period and/or abandons your file without notice, things can only get worse. On top of that, there is a punishment for even daring to try to recover the wasted fees and costs awards…the judges will award costs against you to send you a message that the profession has a license to steal and defraud and you better accept that.
It is very sad, because many SRLs do a better job of research and writing than most lawyers, yet the Judges refuse to even read their materials.
I am so happy that the quality of blogs continues to be high. It has been gems that were uttered in this blog. To collect some of them:
The statutory mandate of the Law Society of Ontario is to function in the “public interest”. The public interest requires that the legal profession respect all members of society, not just a privileged few.
Their principle appears to be claiming the right not to have to do something, even though that something (supporting equality, diversity, and inclusion) is something that all professionals would say they support.
The bargain of self-regulation for the legal profession is that they will govern themselves, but do so in the public interest… The public interest requires access to affordable legal services. It requires lawyers to be available to protect and defend public rights and freedoms, not squabble about their own perceived abstract slights.
Whatever the big efforts that outsiders make may fall into the dear years of the leaders of insiders. However, when the efforts are made by insiders, there is a high chance that their leaders will listen to them and concede to change. So, thanks for all the insiders who voice for self-represented litigants and the general public interests.
Relevance vs rationale??? I often wonder how a lawyer charging $500.00 per hour would feel: IF WHEN they are faced with their first serious problem they had to pay $8,000.00 per hour and a $750,000.00 cash retainer up front with no real guarantees of success? ( all the while forced to “hurray up and wait” for??? )
These elite have created a parallel reality which on its face serves themselves and I do not appreciate it in any way shape or form they create it. Our free will is being usurped by duress and fraud and the financial freedom we posses is being redistributed to those who do NOT deserve it. In my case even though I am a 14th generation farmer with only grade 8 education I am in a situation where a member of the law society whom i retained to take care of a legal contract completely let me down and even with their own expert admitting the gross professional negligence and lack of standard of care and conflict of interest … the “legal” problem is somehow my fault and that is their reasoning and rational to not pay what is owed.
The only real option and the only effective way to put these elite in their place is to say NO to them every time a parallel version of truth or justice is presented! (rationalize this: Oh how they hate it! and how I love it because it is true… this is the real conflict) The worst case I have ever experienced is when a lawyer and judge “refuse to accept the truth” and instead create/make up their own story version/intentional parallel construction and thus corrupting both the Legislation AND the common law! The resulting Case Law is like a bad joke!!! Truth makes us all free and the legal system must accept this as a starting point and as the end result!
The LSO’s current debate about the Statement of Principles seems almost entirely irrelevant to the serving in the public interest. I agree with Julie’s descriptions of fiddling while Rome burns and arranging breakfast dates on the Titanic.
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A (mildly) less bleak piece of imagery for this situation is found in Umberto Eco’s ‘The Name of the Rose’. In the movie, the lavishly adorned Papal envoys are oblivious to the poverty of the local peasants as they arrive for a debate about whether Jesus owned his clothes. The hope in this image is that the debate was with a small group of insiders, the Franciscans, who were trying to get the Church back ‘on message’ to help the poor.
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I am pleased that Malcolm has been re-elected Treasurer. My hope is that he can steer the LSO back to its core duty to function in the public interest.
The problem is genetic. I don’t mean in the DNA of the individuals but in the design of the whole system. This SOP circus is a distraction for the lawyers and I don’t think worth much of our time. A more revealing example of the legal establishment focusing solely on itself begins on Sunday at Cambridge University in the U.K. The Canadian Institute for Advanced Legal Studies has a rusty old website that’s worth exploring. The programme for this year’s Cambridge Lectures is at http://canadian-institute.com/english/lectures-2019e.html .
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Have a look at who is on the programme and the titles of their presentations. Though this was always billed as an international gathering it’s very much a Canadian one. How many of our judges will be in the audience? Some old CJC annual reports say that we were sending 50 or more back at the end of the nineties. And yet in all the years this has been running the Canadian media hasn’t said a word about it. The CBC’s Michael Enright was on the programme several times and apparently his expenses for those trips were paid for by the organizers. Justice Minister Lametti is on the programme and you can check the media to see what he had to say recently about the call for the judiciary’s expenses to be published.
In the USA, private insurance companies provide attorneys with professional liability insurance coverage which is mandatory in two states only. In Canada, under the guise that all clients of lawyers ought to be “protected”, the Law Societies mandated that all lawyers must paid for professional liability insurance coverage to a minimum amount of $2 M. That’s terrific, right?
Most clients may not realize that it is their province’s Law Society who is the sole provider of such mandatory professional liability insurance coverage! It’s a monopoly! So, if your former lawyer committed legal malpractice and the amount of damages is large, say $100,000 and above and you approach a new lawyer about representing you, chances are slim to none that he/she will take on your case. (Lawyers hate suing their fellow brethren in the close knit legal community. Besides, should you be awarded a large damages amount, all judges’ and lawyers’ including your lawyer’s annual premium will rise next year.)
If the Law Societies would allow private insurers like Sun Life, London Life, Great West Life, etc., to offer insurance coverage, you would have more lawyers willing to sue other lawyers, i.e. if your new lawyer is insured by Sun Life and your former lawyer is insured my Great West Life, should you win BIG, your new lawyer’s annual insurance premium won’t rise as much as your former lawyer. Of course, if you happen to have the misfortune of the judge being insured by the same insurer as your former lawyer, expect a major defeat.
The insurer that is the Law Society will vigorously fight you teeth and nail over your large damages claim more so than a private insurer who knows when to cut bait.