Challenges Facing the Legal Profession

Head Table Guests

Gareth Seltzer, Vice-President, Private Banking, Guardian Capital Advisors and a Director, The Empire Club of Canada; Paul Monahan, Partner, Fasken Campbell Godfrey and retired Executive Assistant to The Hon. Allan Rock; Peter W. Hogg, Q.C., Professor of Law, York University; Kathy Dunphy, The Toronto Star; Michael F. Brown, Senior Discipline Counsel, The Law Society of Upper Canada; Jessica Lax, student; Vanessa Campion, grade 6 student, Mabin School; Lorne Morphy, Q.C., Partner, Tory Tory DesLauriers & Binnington; Jack Petch, Q.C., Partner, Osler Hoskin & Harcourt; The Hon. Justice Tamarin Dunnet, Judge of the Ontario Court, General Division; Julie Hannaford, Partner, Borden & Elliot and 1st Vice-President, The Empire Club of Canada; Joan Lax, Assistant Dean and Director of Admissions, Faculty of Law, University of Toronto; John F. Evans, Q.C., Barrister & Solicitor, Hamilton, Ontario; The Rev. Canon Gerald P. Loweth, Minister, St. Philips, Lawrence Park; Dr. Susan Mann, President, York University; Meredith Pilkington-Shaw, grade 8 student, Branksome Hall; Laura Legge, Q.C., Partner, Legge & Legge; The Hon. Charles Dubin, Chief Justice of Ontario.

Introduction by John Campion

Dickens Reforms Canada's Courts

"Implacable November weather. As much mud in the streets as if the waters had but newly retired from the face of the earth. Fog everywhere.

The dense fog is densest and the muddy streets are muddiest near the Temple Bar. And hard by Temple Bar in Lincoln's Inn Hall, at the very heart of the fog, sits the Lord High Chancellor in his Court of Chancery.

Never came there fogs too thick, never came there mud and mire too deep to assort with the groping and floundering condition which the High Court of Chancery had fallen in sight of heaven and earth.

On such an afternoon, some score of members of the High Court of Chancery Bar are mistily engaged in one of 10,000 stages of an endless cause, tripping one another up on slippery precedents, groping knee deep in technicalities in a lawsuit squeezed dry upon years ago so that no man alive can know what it all meant."

So, in 1850, began one of the greatest popular story-tellers of all time--Charles Dickens. At the beginning of his novel, Bleak House, Dickens, a former court reporter, described the sorry state of affairs in the case known in the Chancery Court as Jarndyce v. Jarndyce.

Upon what cause lay the plight of the parties and their inheritors? It lay upon many factors, but most of all, it lay upon the changes in the life and times wrought in England, Europe, America and elsewhere in the world by a revolution. The two great revolutions which have affected our age most profoundly were the French Revolution of the 1780s, driven by the Enlightenment and the less spectacular but equally powerful English Industrial Revolution of the same period, driven by the advances of science and technology.

It was the Industrial Revolution which in a few short decades at the end of the eighteenth century transformed a world, conservative, ordered, agrarian and insular society into a bustling, urban, industrial society of world-wide reach.

While commerce and invention caused extraordinary changes for the good, they left in their wake ancient institutions creaking under the weight of their conservatism and horrific new social, environmental, economic and psychological problems which haunt us yet.

The legal system was slow to change, but change it did. The reform movements of the 1830s ultimately translated into a streamlining of the courts, a simplification of procedures and ultimately a change in the education system, including greater access to the great profession of solicitors and barristers.

In the twentieth century, the legal profession and the legal system have had unparalleled success as lawyers, judges, academics and legally trained people in all walks of life have affected or dominated a good portion of the society's political, social and economic agenda in a turbulent, fast-paced, violent and confrontational time.

But change is upon us again. This time in the face of a scientific, communication and space-age revolution. In the wake of these changes, our procedures are too slow and expensive. Family matters, criminal justice, social issues and constitutional matters all require detailed and expert care but are played out more and more under the unforgiving scrutiny of a sceptical public wired to an electronic universe.

In the midst of this rapid and unpredictable change, the legal system is now facing unprecedented problems; the signs of stress are everywhere in our institutions and in the profession. Our society's ability to adjust to these changes is fundamental to the well-being of the society as a whole. One of the precious pillars of our democracy--the rule of law--is under the spotlight and in need of fundamental revision.

Marilyn Pilkington is one of the most prominent lawyers, teachers, and administrators active in law, in the country today. She became Dean of Osgoode Hall Law School in 1993. She is the first woman to serve as Dean of an Ontario law school. Before joining the Faculty of Law in 1980, Dean Pilkington served as a law clerk to the Honourable Mr. Justice Judson of the Supreme Court of Canada and practised law. She teaches evidence, constitutional law, civil procedure and issues concerning the legal profession.

She is co-author of a book on business corporations law with Frank Iacobucci, now of the Supreme Court of Canada and Robert Prichard, now President of the University of Toronto. Ms. Pilkington is active within her University and within the profession as a member of the Society's Certification Board and as a consultant to The Law Society on reform of its discipline and complaints processes.

Marilyn Pilkington has contributed to law reform as a member of the research team for the Ontario Law Reform Commission's project on public enquiries and was a member of the advisory committee for the Commission's project on Crown liability. Besides all of this, Ms. Pilkington adjudicates human rights cases as a member of the Canadian Human Rights Tribunal and is active in providing leadership in curriculum reform and institutional development for the profession.

For all of these contributions, Marilyn Pilkington was awarded an Honorary LL.D. by The Law Society of Upper Canada in February, 1994. It is with honour and high expectation that I ask you to welcome Marilyn Pilkington.

Marilyn Pilkington

Chief Justice Dubin, President Mann, distinguished colleagues and guests, and particularly the students who are shadowing their parents today to find out what really goes on while they're at school and their parents are left to their own devices.

There's a lot of pressure on the parents, especially on the lawyers, who know they can't hope to provide as much excitement in a day of real life work as television lawyers pack into an hour. In our household, though, the expectations are more realistic. As many of you will know, it's not easy to explain to a small child what it is that lawyers do. When our daughter, Meredith, was much younger, she spent an hour or so at my husband's law office and later announced that not only did she know what lawyers do but that she was quite sure that she could do it. "What do they do?" I inquired. "They talk on the telephone," she said. "And I can do that." We've been trying ever since to convince her that our work is more challenging than it may appear.

I've been looking forward to today, John, and knowing that this was your last opportunity as President to introduce a speaker, certainly has heightened my sense of anticipation. Your ability to forge links between historical events and current issues has certainly provided added value to the full and varied programme of speakers you have presented to The Empire Club this year, and I am delighted to be among them.

I was part of a small group gathered by John Campion some months ago to discuss potential speakers for the Law and Society Series. We came up with a lengthy and wonderful list--including the Minister of Justice and the Chief Justice of Canada, from whom we've already heard. The breadth and range of the list of potential speakers and topics that would be of interest to members of The Empire Club demonstrated very vividly the extent to which the law provides a framework for discussing many of our important social and political issues, and the extent to which we have turned to the legal system to resolve these issues and to settle important value questions for our society.

I hasten to assure you that I didn't suggest myself as a speaker--nor, as I recall, did anyone else at that meeting--and I'm not quite sure what led to John's subsequent invitation, but I accepted with enthusiasm. I am pleased to add a law dean's perspective to those already offered in this series, from government and from the court. John has invited me to talk, not about legal education, but about some of the challenges facing the legal profession, and has urged me to pull no punches.

In the campaign for the approaching election of the governing body of the Law Society, there is a good deal of discussion of how the Society should handle the interests of the profession. There is perhaps not enough discussion of how we can improve the profession's service to the public.

There are plenty of critics of the legal profession who pull no punches, and there always have been. Among the traditional learned professions--none of which escapes criticism--lawyers as a group have always been a target, frequently depicted as venal exploiters of others' misfortunes, acting without scruples or conscience. It's a consistent theme, incongruous and troubling to the majority of lawyers, and perceived by them as grossly unfair, but nonetheless sufficiently widespread to be popularised in the seemingly endless supply of lawyer jokes, and palpable in political rhetoric, particularly in the United States.

The strength of the appeal of this negative image and its permeation of popular culture was brought home to me in the movie Hook, released a few years ago. Those of you who've seen it may remember that the grown-up Peter Pan, played by Robin Williams, has forgotten his earlier life and what he stood for, and has developed instead into a mergers and acquisitions lawyer--providing an opening for Maggie Smith, the aging Wendy, to shake her head sadly and say, "Oh Peter, you've become a pirate." To make sure that the audience gets the message, Williams is shown giving a speech in which he tells lawyer jokes. You know the sort:

Q.: "Why are some research scientists now using lawyers instead of rats?"

A.: "There are some things even a rat won't do. And besides, you can get attached to a rat."

Now we know, given the marriage rates of lawyers, that lots of people get attached to them--and stay attached to them. Nonetheless the makers of a commercial movie, designed for a widespread audience, perceived that these lines would resonate with some deep-seated apprehension about lawyers as a group.

This negative image of lawyers as amoral, self-seeking sharks is not a modern phenomenon, nor is it rooted in American attitudes. Great English writers--among them Shakespeare, Dickens, Swift, Addison, Pope, Johnson, Trollope--all took swipes at lawyers and their impact on the administration of justice. Nor is the negative view limited to common law jurisdictions. It's hard to resist Alan Dershowitz's conclusion that "any profession that suffers from so foul a reputation must, in some way, provoke it."

In fact some of the unease with the profession stems from a lack of understanding of the role of lawyers in our adversary system, and unless we change that system, this lack can be addressed only by explaining their role more effectively. Thus, for example, there is criticism of the morality of a profession whose members defend accused persons whom they know to be guilty. Our adversary system, and professional ethics, require that a lawyer instructed to defend the case must present as strong a defence as is possible, challenging and testing the Crown's case, conceding nothing. The lawyer is restrained from putting forward any affirmative defence that would mislead the court--a false alibi, for example--but is otherwise entitled to require that the Crown prove its case beyond a reasonable doubt without assistance from the defence.

In our system, it's judge and jury who are charged with assessing the truth. It's assumed that they are likely to do so most effectively if two advocates argue on either side of the matter, laying out the strengths of their own case and the weaknesses of the other side. It's assumed that, out of the cut and thrust, the truth will emerge. While the lawyer's role as advocate may appear to some to be amoral and value free, it serves the values of our adversary system, widely assumed to be a bulwark of our freedom.

Thus, some of the negative image of lawyers is'~ undoubtedly based on a misunderstanding of their roles. But the criticisms go beyond this, indicating that there are ' too many instances in which lawyers are perceived as putting their interests ahead of the interests of the clients or potential clients. These criticisms include the citation of conflicts of interest and the provision of unnecessary services, and the impact of decisions by law firms to concentrate their services only in lucrative fields of practice, treating their work like a business to be maximised and marketed rather than a vehicle for making professional services available to the public.

On the other hand, negative images of lawyers are counter-balanced by other, equally compelling, positive images--the independent and sometimes courageous advocate, champion of the rights of the individual, of the oppressed minority, against the majority power of the state and popular opinion; the trusted advisor who combines expert knowledge of the law and highly developed lawyering skills with wise judgment of human and business affairs; the fiduciary whose integrity can be relied upon absolutely; the clinic lawyer working for social justice. We think of some of our heroes at the bar--advocates like J. J. Robinett, G. Arthur Martin, Charles Dubin, now our Chief Justice, and his former protege, Lorne Morphy. We think of leading solicitors, not only in the large firms, but also in successful smaller practices--lawyers who like Laura Legge embody professional standards. We think of outstanding legal scholars and counsel like constitutional lawyer Professor Peter Hogg. It is these images that attract the brightest and the best to our law schools. It is these models that most of us seek to emulate. This positive image of the lawyer has also entered public consciousness.

At best, however, the image--and the reality--of lawyers are mixed. Should the profession be concerned? Should the public be concerned? I referred at the beginning of my remarks to the fact that our society looks increasingly to the legal system to settle important value questions. Other social institutions which used to define and informally enforce standards of behaviour have to a large extent withdrawn from the field, requiring more and more reliance on law as a means of control. This reminds us of Mark Twain's comment--surely more apt today than in his time--that, "If you laid all our laws end to end, there would be no end."

Most would agree that it's a good thing that we now have a more diverse, pluralistic and perhaps more tolerant society, and many remember that the power of social conformity frequently imposed high costs on individuals, especially on (but by no means restricted to) women. On the other hand, the lack of extra-legal constraints on behaviour may put too much pressure on the legal system. Alexander Solzhenitsyn described the problem:

"People in the West have acquired considerable skill in using, interpreting and manipulating law... Every conflict is solved according to the letter of the law and this is considered to be the ultimate solution. If one is right from a legal point of view, nothing more is required;... Voluntary self-restraint is almost unheard of; everybody strives toward further expansion to the extreme limit of the legal frames... I have spent all my life under a Communist regime," he said, "and I will tell you that a society with no other scale but the legal one is also less than worthy of man."

As Alexander Bickel puts it: "The law can never make us as secure as we are when we do not need it."

In this context it is, at least, an ironic coincidence that with the availability of the Charter of Rights and Freedoms, providing disadvantaged minorities with the opportunities to advance their interests as legal claims, there is also diminishing political commitment to fund the social programmes which respond to the needs of the disadvantaged. As we become a society of people who assert our legal rights, perhaps we feel less strongly the sense of community, of duty and obligation to the less fortunate than was felt in previous eras.

The more we must rely on the legal system, the more it is important that there be public confidence in its players. In light of the mixed image of the legal profession, will we be content to rely on lawyers to shape important issues for decision and on legally trained judges to decide those issues? And if not, do we have alternatives?

The regulation of the legal profession provides a microcosm of the larger challenge. One of the essential attributes of a professional is a sense of standards and values. As the profession has become more diverse and more stratified in a wide range of modes of practice, it's less likely that there is a cohesive set of shared values, and there is more need to regulate conduct through explicit rules. That, in turn, may lead to a sense that it is sufficient if lawyers comply with the letter of the explicit rules--or, more narrowly, the explicit rules that are actually enforced.

A major challenge for the legal profession is to redesign its systems for inculcating and enforcing standards of professional conduct in this changing milieu, to ensure that lawyers maintain the self-restraint that enables them to put service to others ahead of self-interest. Without this discipline, lawyers simply cannot justify their power to regulate themselves.

It is worth emphasising that this is a profession that bears the costs of its regulation, that funds the costs of insuring against the errors and omissions of its members, that compensates clients who suffer from a lawyer's misconduct. In effect, members of the profession stand behind each other's competence and honesty. The increasing costs of doing so have generated intense scrutiny within the profession, focusing on whether there are too many lawyers, whether we can be confident of their standards, whether they should be required to undertake continuing legal education and how they should be regulated to ensure competence and professional standards.

Do we have too many lawyers? Only if one accepts that the market for legal services is limited to that now served by the bulk of the legal profession. But it's worth noting an observation by former President Jimmy Carter, who said of the profession in the United States:

"We have the heaviest concentration of lawyers on earth... We have more litigation, but I am not sure we have more justice. No resource of talent and training in our society, not even medical care, is more wastefully or unfairly distributed than legal skills. Ninety per cent of our lawyers serve 10 per cent of our people."

Our legal aid programme and our network of community legal clinics might produce a somewhat more favourable ratio, but the thrust of President Carter's observation is apt for the legal profession on both sides of the border.

When it becomes highly competitive among the 90 per cent of lawyers who seek to serve the 10 per cent of the public, there are calls from some within the profession to limit the number of lawyers, to enhance the effectiveness of the monopoly, and to ensure appropriate prices for legal services. One can understand the reasoning. If clients in a competitive market bargain for a low fee on a transaction, one less than the cost of undertaking the necessary legal work to protect the client's interest, but rely on the fact that, if anything goes wrong, there will be insurance and other resources to claim against (resulting in increased insurance premiums) the lawyers lose at every turn. Nonetheless, price-fixing monopolies are not generally considered to be consistent with the public interest, and such policies could put the profession's privilege of self-government at risk.

The alternative is to expand access to cost-effective legal services for those whose interests are not currently well served by the legal profession. As our society relies more heavily on laws, systems and processes to resolve complaints and mediate interests, there are opportunities for individuals educated in the law to integrate and apply their knowledge and skill in a variety of alternative and productive careers.

And thus, the legal profession must confront some fundamental issues--not by focusing on its narrow and immediate self-interest, but by facilitating change in a manner that enhances what is best about the profession and addresses legitimate and long-standing concerns. It must do what it should do well-rethinking old forms in the context of new needs, establishing and enforcing necessary standards, applying its formidable analytical and problem solving skills to strengthen the profession and expand its capacity to serve the widespread need for legal services. In doing so, lawyers must consider their motivations for practising law. The future of the legal profession depends upon our commitment to professional values of service, and may require that we revise our expectations of the opportunities the profession provides to maximise incomes.

To the students who are shadowing lawyer parents today, I would say that a career in the law provides tremendous opportunities for stimulating work that helps people, facilitates enterprise and development, and provides a framework for stability and change in our society. And I can also assure you that even after your parents have done their best to address the issues facing the legal profession, much will remain to provide a challenge for your generation.

The appreciation of the meeting was expressed by Julie Hannaford, Partner, Borden & Elliot and 1st Vice-President, The Empire Club of Canada.