Later today, I will have the privilege of participating in a working group of the Chief Justice of Ontario’s Advisory Committee on Professionalism tasked with modernizing the basic principles of professionalism for lawyers. High in priority is the importance of integrating equity, diversity and cultural competency into the package that lawyers must offer the public.
Historically an afterthought
The equity and diversity file has historically been an afterthought, tucked into the discussion after other ‘Wonder Bread’ aspects of professional merit are given full airing. This has been a fault of those leading the discussion. It is time to turn the agenda on its head. The result is that we have promoted equity and diversity through conventional methods, with negligible effect in the bar and judiciary compared to other sectors of Canadian business and labour. We have, till now, invoked skills of application more than cognition, policy handbooks more than classroom training, stick more than carrot.
As a point of reference, we have espoused (and imposed) virtues such as tolerance and belonging in order to foster greater participation within an established social order. “Become one of us” actually implies a one-way benefit to the inductee in being introduced. While we often follow up the welcome with a belief and/or statement that “diversity makes us better,” we rarely take active steps to achieve this betterment.
It came to my notice that my last post on the British Columbia Law Society’s handling of the accreditation of Trinity Western Law School may have appeared at odds with a prior entry encouraging a negotiated solution. In the September 26 post, “B.C. Law Society abdicates self-governance in favour of non-governance,” I stated that the decision to refer the decision to a referendum before the expiry of a statutory 12-month period was an abdication of the Law Society’s duty to govern the affairs of the legal profession. Further, the referendum option can only be invoked by a petition from the membership, not the governing benchers.
It should also be noted that the Law Society handed the decision over to the governed members, with regard to a matter that does not affect them internally as members, but rather a matter of external public policy over prospective members. In regard to such external policy, only the governors should be considered to have original jurisdiction and expertise, not the governed. The benchers should have stuck to their decision to accredit, or should have reconsidered it. If they maintained their accreditation, they would nevertheless owe the public a duty to work with the university to find accommodation for those who suffer exclusion. If they reversed their decision and adopted the Ontario position against accreditation, they would owe a duty to the university to work toward an accommodation of religious freedom.
In the June 12 item, “End the Trinity Western Law School Deadlock without Litigation,” I urged the Law Society ought to consider the 12-month period as a time to negotiate a wording of the controversial Community Covenant that accommodates religious freedom and equality rights.
From comments and tweets readers have kindly provided, I have connected the dots and see these posts, combined, define a categorical imperative for the bar in Canada to negotiate a resolution. B.C.’s governing body deserves criticism over its September 26 decision. In Ontario and Nova Scotia, it is up to the university to suspend the judicial review proceedings to allow the Law Society of Upper Canada and the Nova Scotia Barristers Society to open a channel of communications. It is really time for the Canadian legal profession to stop the “lofty and passive” approach and show the Canadian public that lawyers can do what the public expects us to do: peacefully resolve seemingly intractable differences and enable both freedom and equality in the nation’s civic affairs. If we do not do this, or at least fail trying very hard, we do not deserve the privileged and independent position we hold in Canadian society.
In her September 30 column in Slaw.ca, Tackling Technology, Prof. Amy Salyzyn argues lawyers’ ability to use and manage information technology is now an element of professional competence. Technology is now a driver of client service, effective lawyering and access to justice. The flip side of this argument is that screen-based technology is an inhibitor of contextual literacy. Contextual literacy is a core legal skill, without which our services are worthless to clients. Technological literacy will probably look after itself, with the passing of generations. Loss of contextual literacy, however, will be a more serious problem from the perspective of legal education and training.
I have recently encountered this phenomenon when hearing a young lawyer maintain that a contractual limitation period for an acknowledged obligation starts from the date of subsequent repudiation and not from the date of acknowledgement. This lawyer’s assumption, based on the spatial pattern of the way limitations work in breach of contract cases, had to be dispelled by mapping out the operation of s. 13 of the Ontario Limitations Act, 2002 and reading each word as defined in the statutory architecture. Once you see it, it follows the former common law on the subject, and there’s no other way to see it. Until then, it seems a wordy mess and the mind’s eye is tempted to read it the way other limitation periods are structured. In the intervening period between acknowledgment and repudiation, the limitation period changed. The significance to the lawyer, who thought he had started the action a day before it prescribed, was that he may actually have missed the limitation period by several weeks.
A significant generational divide in lawyers’ literacy is the widespread variation of spatial cognition skills among Baby-Boom and Gen X lawyers compared to Millennials. The older lawyers tend to be better grammarians and the younger ones are better at reading charts. This is a human factors issue for our profession similar to the way in which the use of a big red stop button is important to operators of heavy equipment. We need to be better cognizant of the way technology amplifies both our strengths and weaknesses. Instead of hiding our weaknesses or making light of them, we have to learn how to teach ways of overcoming them. So it is more than requiring lawyers to learn to use PC Law, Excel, or collaborative web solutions. We must develop strategies for overcoming the loss of ‘artisanal’ skills resulting from technological innovations.
We complain that people can’t read or write any more, but teaching grammar like they did in the one-room school house is no longer useful or efficacious. In law, the search for clarity and precision requires us to develop ways of teaching new lawyers that words have meaning depending on the linear order in which words appear. An example I have used is to ask a young person learning French the difference between the phrases, “neuf nouveaux bateaux” and “nouveau neuf bateaux.” Until one introduces a spatial explanation, it is not easy to see the difference between “nine new boats” and “new nine boats,” except that the latter appears simply to be an awkward way of expressing the former. In fact, the latter implies a pre-existing context in which boats are already organized in groups of nine (eg. a marina in which each pier docks nine boats), whereas nine new boats implies only an undefined number of previous boats (eg., nine new boats entering the marina). We see blindness to this type of issue more and more. Unless we teach how to overcome it, lawyers are going to be making mistakes all the time and not understanding the mistakes they made.
This afternoon, the Law Society of British Columbia voted 20-10 to hold a referendum on the issue of accreditation of the Trinity Western University. This came after a vote of 9-21 against deciding to overturn its previous decision in April to grant accreditation.* That first motion arose from a non-binding resolution of a special general meeting of the entire B.C. Bar, held in June. A third motion, to defer any decision, was obviated by the decision to hold a referendum.
In deciding to hold a referendum, the B.C. benchers have abdicated their responsibility as the directors of a self-governing profession. Either they should have stood by their original decision to grant accreditation, or they should have reversed their decision based on the interventions made at the June special meeting. Instead, they have decided to distribute the decision-making authority to the general membership.
While this may seem ‘democratic’ in a populist sense, atomizing a decision-making power to the membership is not democratic because the public has entrusted the legal profession to govern itself. The Law Society derives its authority to govern in this instance not from the electors but from the people of B.C. The election of benchers is not only an act of selection but of submission to the public interest in exchange for the monopoly over legal services. Since the public has no voice in the process apart from legislative amendment of the statute and the appointment of a handful of lay benchers, a voluntary referendum not mandated by the statute exceeds the Law Society’s jurisdiction requiring it to be governed by benchers. In this regard, the B.C. Law Society’s decision was not only unlawful. It also showed a lack of understanding of the purpose of law societies.
Henry Higgins, in My Fair Lady, famously sang, “Why can’t a woman be more like a man?” For Higgins, an elocution teacher who traded in British class prejudice by offering to improve clients’ social standing through posh talk, the education of a woman was essentially a troublesome Alternative Business Structure (ABS) – he could work with the moving parts but the brain remained a mystery.
The Final Report of the Canadian Bar Association’s Legal Futures Initiative, released today, appears to be a multifaceted atlas mapping out a strategy for renewal of Canada’s law industry. There are many good thoughts in it, including a premise that “The future for lawyers is as much about ethics and values as it is about economics and value.” That equation is somewhat betrayed by the simple textual metric that the word “value” in the sense of economic value is used more than twice as often than in the sense of ethical values. Review of the report from beginning to end bears out this imbalance. In reality, there is no shortage of Darwinian zeal when it comes to the core message: Change or Die.
Il n’y a, en général, que les conceptions simples qui s’emparent de l’esprit du peuple. Une idée fausse, mais claire et précise, aura toujours plus de puissance dans le monde qu’une idée vraie, mais complexe.
~ Alexis de Tocqueville, De la démocratie en Amérique
De Tocqueville was likely not the first to say it, but his observation that democracies love simplicity came with the warning that people will embrace a clear and precise lie sooner than a complex truth. Add the frenzy of insurrection to the power of the people, and we can, through his eyes, see the contrast between the French and American republics at the end of the 18th century. One can argue the relative complexity of the American constitutional documents, intended to buffer the excesses of direct democracy, has acted as a restraint against mob rule.
The power of simplicity has long been a challenge for jurists in a democracy. Statutes and common-law principles tend to be blunt instruments, especially in a pluralistic society. The task of deciding whether those blunt instruments apply to a particular set of facts falls on the judiciary. Beyond the Ten Commandments, codes of civil and penal laws necessarily involve that critical extra step for implementation. For example, every criminal offence and every civil duty of care that does not impose absolute or strict liability contains both an active and a mental element. Instead of explaining the method by which the law operates, judges and lawyers often fall into the pastime of grafting a second layer of law about which there is little certainty. Breaking down the written words of the law into precise and constituent elements is a judicial task; building a superstructure above the text is not. The key to the constitutional principle of “peace, order and good government,” not unique to Canada, is a judiciary which understands its role as facilitator of civic governance. Turn the Constitution into an alphabet soup of subjective and unpredictable combinations, and our courts will be working against its proper function.
A Problem of Legal Training
Lawyers and judges are trained to build constructs out of legislative and common-law principles, based on a theory that there are both written and unwritten laws. In doing so, we mistake the underlying or interpretive logic of statutory instruments and common law precedents for a separate set of rules. Even the common law is a body of rules that exists only in the written texts of judicial precedents, so expansion of law instead of carving down its bluntness can be viewed as treading on elected power. We often misconstrue our duty and try to ‘build upon’ the law, instead of interpreting the law as it applies to the parties’ situation. It is time to think hard about what are doing, and whether what we are teaching is right. We have to decide whether we are jurists or social scientists. The further we stray from being jurists, the utility and legitimacy of our professional expertise wears thinner.