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«THE LAW SOCIETY OF UPPER CANADA PROFESSIONALISM REVISITED Opening Address Benchers' Retreat October 14, 1999 Hockley Valley, Ontario Rosalie ...»

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Opening Address Benchers' Retreat

October 14, 1999

Hockley Valley, Ontario

Rosalie Silberman Abella Justice, Court of Appeal for Ontario

This speech is about values. My thesis is that there are three basic values which merge in a good lawyer:

a commitment to competence, which is about skills; a commitment to ethics, which is about decency; and

a commitment to professionalism, which transfuses the public interest into the two other values. My sense is that while there is a crisis neither of competence nor of ethics, most lawyers having both in laudable abundance, the same cannot be said of the spirit of professionalism. I speak to you as someone with an idealized and romantic view of the power of law and of lawyers. I think the rumours of the death of legal professionalism have been greatly exaggerated. I graduated from law school in 1970 and have been proud every day since of being a member of this profession. But I am not unaware that there are many out there who are watching the justice parade with growing concern for the quality of the floats.

Justice may be being done, but it is not necessarily being seen to be done, and justice must be seen to be believed. Law is central to democracy. The public thinks that law and democracy are about justice, that justice is about fairness, and that lawyers should be, as people who live in the house of justice, the fairest of them all. Can we as lawyers look in the mirror and say we truly are?

There is nothing new about the public's scepticism about our profession. Sir Thomas More's Utopia had no lawyers in it; Chaucer's The Canterbury Tales had the odious Sergeant of Law; and Kafka's Trial had no discernable law at all. Margaret Atwood once observed that when Sidney Carton, the heroic lawyer in "A Tale of Two Cities", was about to be guillotined and said "Tis a far far better thing I do than I have ever done", he was "putting the practice of law into its proper perspective."

It was the same Margaret Atwood who, after noting wryly that in the Old Testament there is a Book of Judges but no Book of Lawyers, offers the deflationary insight that "In the Judaeo-Christian tradition, God is, among other things, a judge; an equation that some judges... are inclined to reverse."

But although historically we in the legal system have never been able to declare a clear victory over the public's affections, I would argue that the intensity of the public's disaffection is now so palpable that it has started to affect the profession's own perception of its professionalism.

When I graduated from law school, no one taught ethics or professionalism. In the Bar Admission course, the then Chief Justice of the province gave a one-hour lecture on how lawyers should behave. He told the over 500 students never to wear brown suits and white socks, a largely irrelevant observation for the 10 women in the room who nonetheless shared the Chief Justice's view of brown suits.

Yet despite the fact that the only lecture on being a lawyer in four and a half years of my legal education was about what a lawyer should look like, there was a tacit consensus about what it meant to be a lawyer.

It meant being a professional, which meant all of those romantic notions about decency, civility, trustworthiness, and fairness, to name a few. The lawyers who had good reputations were the lawyers who practised law with these adjectives as conduct guides. Some of them made a lot of money, which no one begrudged them or presumed. And quite a few of them were very smart. But they were also overwhelmingly white, male, able-bodied, and socially advantaged. Diversity was a word we used to describe the variety of cases we handled, not our consumer or collegial environments.

We have come a long way. When I was appointed to the bench in 1976 there were fewer than a dozen women judges in Canada. I was the first pregnant woman to be made a judge. That pregnancy offered me my first close-up of stereotyping. I was home on maternity leave 2 months after my appointment with our 3 year-old son, Jacob, having given birth to his brother, Zachary, two months earlier. I was reading to him what he obviously found to be a tantalizing book called "If I Were a Bus Driver." When I finished the book he said, "When I grow up, I want to be a bus driver." "Don't you want to be a judge?", I gently pressured. He looked up at me, confused, and replied assertively, "Only girls are judges."

That 3 year-old is now articling, and his baby brother has just started law school, but they are graduating into a very different professional environment from mine three decades ago. It is bursting with diversity, far better educated about ethics, far better paid, and far more stressful. But it is also a professional environment where the consensus about what it means to be a professional has broken down, as has the consensus about what the criteria should be for awarding good reputations.

What worries me about this is not so much the absence of a consensus, although this is undoubtedly an unsettling reality, it is the threat I fear to the very legitimacy of the profession, and to the professionals and institutions in it. Although I quickly concede that this is not a new issue, it has a feel of urgency to me in this ideologically polarized, intellectually sclerotic, and frenetically fluid era.

There is undoubtedly a crisis of professionalism generally, and that crisis in turn is having a supply-side impact on everyone, including lawyers. It should surprise no one that lawyers are affected by the spirit of the times, but neither should it surprise lawyers that the public expects them to rise above it.

The fact that the public is so nervous should at least give us pause. It is certainly true that we cannot expect to be popular with the public all the time. The independence of the Bench and Bar means we have to be prepared to be unpopular with the public from time to time, and even on occasion controversial; but our independence does not absolve us from the responsibility of listening and being open to the possibility that the public's suggestions and criticisms are relevant. We cannot, of course, accede to every request for a response just because it comes from the public, but neither should we decry every criticism as irrelevant just because it had never occurred to us before, or came from an unfamiliar source, or met with no support from our colleagues.

Justice may be blind, but the public is not.

The public is our audience, the people for whom we perform the justice play. They do not direct us, but they are very interested in what is going on. If they stop clapping, we are in deep trouble. We have to figure out if it is because of the script, the props, the cast, or all of them. We know we will always have an audience, because the play is called the Rule of Law, and the public's attendance is mandatory. Since we give the public no choice about whether or not they are subject to the rule of law, we have to care about whether they like the performance. They may not always be right, but they always have a right to be heard.

This is how, in large part, we discharge our accountability to the public without compromising our independence: through an empathetic hearing of its concerns, being open to the possibility that its concerns may be valid, and responding as effectively and quickly as possible when they are.

To me, the Law Society got it right when it said in its 1994 Role Statement that the legal profession exists in the public interest to advance the cause of justice and the rule of law. So did the American Bar Association's 1996 Professionalism Report on Teaching and Learning Professionalism, when it said that professionalism was about "dedication to justice and the public good."

High-sounding and high-minded ideals, but they are for me not mere rhetorical flourishes - they are bedrock aspirations. They are how we should be seeing ourselves, how we should be seen by others, and how we should continually strive to be seen. Professionalism is more than about being a lawyer - it is about why we are lawyers.

But in my view, two headwinds are polluting, or at least threatening to pollute, the ideal professional environment, and therefore the centrality of our relationship with the public: economic pressures and a misplaced preoccupation with process. These Zeitgeist forces create a kind of turbulence in our pursuit to narrow the gap between our professional ideals and the competing realities.

1. Economic Pressures

Lawyers, like everyone else, relished the boon economy of the 80's, and raised their financial aspirations and expectations accordingly. Many people got rich in the 80's, including many lawyers, and, understandably, no one was eager to give any of it up. When it looked as if they might have to, fear of loss took over. It was, I think, this intense fear of losing the economic benefits so intensely accumulated in the 80's that largely sedated people's impulse for generosity.

The fear of economic loss played out in different ways for different groups, but among lawyers it played out in rigid billing requirements, increased competition, and a restricted willingness to acknowledge requests for lifestyles that included living a life.

But to me, the most worrying repercussion of the economic Darwinism at work in the legal profession was the extent to which its impact was a perception by the public that the profession had adopted many of the practices not of a profession, but of a trade. When the public starts thinking of the practice of law as a trade like any other trade, it may well start asking itself why the practice of law should not be treated like a trade. Why, for instance, if lawyers are going to behave like a trade, should they be self-governing? Or why is a lawyer needed at all if lawyering is simply a matter of skill and not professionalism.

The economic amenities lawyers pursue must be seen as the earned rewards of the primary pursuit of serving the public. If they are, no one will begrudge their fair, and even generous, accumulation. If, on the other hand, they are seen as the object of the exercise, we risk ultimately being judged unworthy of the presumption of professional independence.

On the other hand, sometimes the economic pressures lawyers face, especially lawyers in small or sole practitioner firms, arise from not being able to keep up with the extraordinary costs - technological and otherwise - of doing business today. Pressure from clients to do more faster and for less, competition from non-lawyers, the relentless pace and face of change, reduced legal aid work at staggeringly stagnant tariffs - all these and more impose enormous tensions which should be acknowledged.

But in my view economic pressures, while generating inevitable stress for lawyers which may require responsive policy measures from a governing body, cannot be seen as a legitimate excuse to avoid practising in a professional way. Nothing justifies the absence of professionalism for a lawyer, at either end of the economic continuum.

2. Process Preoccupation

We have moved from being a society governed by the rule of law to being a society governed by the law of rules. We have become so completely seduced by the notion, borrowed from criminal law, that process ensures justice, that we have come to believe that process is justice. Yet to members of the public who find themselves mired for years in the civil justice system's process, process may be the obstacle to justice. It may be time - again - to rethink how civil disputes are resolved.

For a start, we need to sever the philosophies of dispute resolution in the civil and criminal justice systems. The dispute in criminal law is between an individual and the state. Process protects that individual's presumption of innocence from the overwhelming power of the state, and necessarily so. But civil justice is usually a dispute between two private parties. Can we honestly say that the fair resolution of such a dispute requires several years and resort to hundreds of rules? It would be worth asking a client who has just lost a lengthy trial how good he or she feels about having had the benefit of an elaborate procedural journey. Would it really surprise anyone if we learned from such a client that the result was of more interest than the process, and that all he or she wanted was a fair chance to be heard? People want their day in court, not their years.

Even alternate dispute resolution mechanisms, hailed at first as the expeditious alternatives to cumbersome court procedures, are themselves turning into procedural mimics of the court system.

Arbitrations all too often end up being almost as lengthy, complex, or expensive as a court case.

In 1906, the then Dean of Harvard Law School, Roscoe Pound, made a speech to the American Bar Association entitled "The Causes of Popular Dissatisfaction with the Administration of Justice." And what was the main cause of dissatisfaction in 1906 according to Pound?

Uncertainty, delay and expense... [are] direct results of the... backwardness of our procedure.

The effect of our exaggerated contentious procedure is not only to irritate parties, witnesses and jurors in particular cases, but to give to the whole community a false notion of the purpose and end of law.

Let's put Pound's almost 100-year old observation in historical context. The horse and buggy of 1906 have been replaced by cars and planes; morphine for medical surgery has been replaced by anaesthetics, and the surgical knife by the laser; caveat emptor has been replaced by consumer law;

child labour has been replaced, period; a whole network of social services and systems is in place to replace the luck of the draw that used to characterize employment relationships; the phonograph has been replaced by the compact disc player; the hegemony of the majority has been replaced by the assertive diversity of minorities; and adoring wives have been replaced by exhausted ones.

And yet, with all these profound changes in how we travel, live, govern, and think, none of which would have been possible without fundamental experimentation and reform, we still conduct civil trials almost exactly the same way as we did in 1906. Any good litigator from 1906 could, with a few hours of coaching, feel perfectly at home in today's courtrooms. Could a doctor from 1906 feel the same way in an operating room?

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