Why can’t a lawyer be more like a share capital corporation? A reflection on the CBA Legal Futures Final Report

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.

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End the Trinity Western Law School Deadlock without Litigation

On June 10, rank and file members of the Law Society of British Columbia voted to require their elected Benchers to reverse course on Trinity Western University’s bid for a new faith-based law school.  According to s. 13 of the B.C. Legal Profession Act, the vote is not binding on Benchers, at least for a grace period of 12 months.  If the Benchers do not implement the resolution within 12 months, they face the prospect of a referendum to be conducted in accordance with poll rules identical to that of a Bencher election, under art. 1-37 of the Law Society Rules (p. 27).  Such a referendum requires a supermajority (66%) of a sizeable quorum (33%) of B.C. lawyers.  The vote, 3,210 in favour and 968 opposed, was uncannily similar to the 4,000-member quorum.

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Why law societies must act to preserve university law libraries (updated)

A report in the Saskatoon StarPhoenix that the University of Saskatchewan plans to eliminate its law library and integrate the collection with three other campus libraries into the main university library prompted protest from many in the legal academy.  One of the requirements set by the Federation of Law Societies of Canada (FLSC) is that a law school maintain a law library (2009 FLSC report pp. 5, 11 and 42).

The argument that many students and practitioners now gain access to legal resources online ignores the importance of the tangible written word on the rule of law.  A row of books, even ones that are “out of date,” serve to remind the public, as well as judges and lawyers, that even the common law is engraved in modern versions of stone tablets for all to view, not suspended in an oral tradition guarded by a few oracles.

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Why Ontario’s next Chief Justice must be able to sell Justice

Four months after Chief Justice Winkler’s retirement, the chair of the Chief Justice of Ontario remains unoccupied.  Most chatter on the topic of his replacement has focused on names.  Will it be so-and-so from the Court of Appeal?  How about an appointment straight from the practising Bar?  Will it be a woman or member of a visible minority this time?

In every other walk of life, we don’t fill positions by hiring a star and hoping he or she will do well.  Rather, we draw up a job description around the purposes of the organization, and recruit the candidate who can best accomplish those purposes.

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Why judges’ political activism also hurts lawyers

The Law Times reported that an Ontario Superior Court Justice is facing a complaint by an oil sands advocacy group to the Canadian Judicial Council for his role in a public mock trial of environmentalist David Suzuki at the Royal Ontario Museum this past November 6.  The basis for the complaint is that the judge’s participation in a political event compromised his judicial impartiality.  Another judge of the same court had originally agreed to participate, but later withdrew in the face of a similar objection.

Judges have long been criticized for “judicial activism,” especially since the advent of the Canadian Charter of Rights and Freedoms.  Whatever one’s view of this subject, it is important to differentiate the judge’s role in representing community values, when interpreting law, from use of the judicial office to support a personal view on a political issue.  Judicial power resides in the authority to state what the law is and the limits of how the law can be applied.  The easily-understood reason for discouraging judges from partisan politics is that interference with constitutionally valid legislative and executive power generates a perception of bias.  It is for this reason that courts, even when they strike down laws or set aside administrative actions as ultra viresdo not formulate amendments or suggest more appropriate courses of actions.  A Canadian judge taking the stage in a political event broadcasts a personal opinion outside the context of a properly constituted, pleaded and justiciable dispute.  A perception of bias, in turn, diminishes the rule-stating authority which allows the judiciary to function.

The following anecdote illustrates a message that is more difficult to explain: why judges’ self-restraint is also important to lawyers’ function as clients’ trusted advisers and representatives.

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“Micro-ethical” issues key to teaching professionalism

In a much-anticipated research paper on training lawyers to be ethical professionals, Shelley M. Kierstead of York University’s Osgoode Hall Law School and University of Toronto’s Erika Abner have published groundbreaking work in “Learning Professionalism in Practice.”  How and where do lawyers learn to be professional?  What are the modes of learning?  Is professional ethics the responsibility of law society regulators, the legal academy, or the profession?  Can ethical lawyers bring “swimmers” onto their lifeboat?

The paper, funded by a fellowship grant from the Chief Justice of Ontario’s Advisory Committee on Professionalism (now the OBA Foundation Chief Justice of Ontario Fellowships in Legal Ethics and Professionalism), explores the occupational setting of lawyers as an environment replete with “micro-ethical moments”:

“Mindful practice, which incorporates self-awareness and critical reflection on these micro-ethical moments, is learned through apprenticeship models that allow for on-going modeling, close observation, reflection and feedback. In particular, new learners learn to develop a certain level of comfort with uncertainty – a hallmark of professional practice.”

To review the abstract and paper, click here.  For more information regarding the fellowships, visit the OBA Foundation Chief Justice of Ontario Fellowships site.

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2013 : The year of ethical lapses among high-performing professionals

If there has been a mystery from the events of 2013, it is the emergence in Canadian public life of respected professionals as instigators of questionable deals and conflicts of interest.  The intrigue surrounding Senator Mike Duffy captured national attention, but we were also mindful of the fact that, in Québec, it was getting hard to find anyone with a clean past to step into the glare of municipal politics.  In law, we ended the year with the disappearance and death of Javed Heydary, and the trail of missing millions from his trust account.

What is common to the cast of characters is that all the alleged culprits – many of them lawyers and other professionals – were high-achieving, Type A personalities who commanded wide respect and loyalty.  Many in the legal profession and academy have been scratching their heads to find an explanation.  Have we had enough oversight?  Regulation?  Statutory penalties?

Maybe, just maybe, we have to study the high-performing professionals themselves.  After all, ethical lapses originate in the mind.  Can we see the behaviour as imbalances of innate and acquired cognition?

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