Wednesday, January 30, 2008

Law societies? You be the judge!

Manitoba Lawyer has left a new comment on your post, "Daily factoid!"

Clare,

You've picked a subject of great personal interest to me. If your readers are interested, they can read the response, itself quite fascinating of the Law Society of Manitoba's current President to Lawyers Gone Bad at

www.lawsociety.mb.ca/communique/communique-current.pdf.

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Dear Manitoba lawyer:

Thank you for writing and the heads up.

When interviewed by Maclean's (August 2007 page 20), Mr. Slayton made a very interesting comment about law societies in Canada:

Q: What happens to lawyers who steal? How is the profession regulated?

A: The disciplinary process of the law societies in this country is deeply flawed. Lawyers are disciplined for breaches of professional rules, but it's like so much in Canada: everything depends on where you live. What can get you disbarred in Alberta won't have much effect on you at all in, say, Nova Scotia. The first difficulty with the disciplinary system is that if you're a lawyer who's alleged to have stepped afoul of the rules, you're investigated by the law society. If they decide you're a transgressor, they'll prosecute you, they'll hire a lawyer to do that, and the disciplinary committtee itself is the law society. So you have the investigator, the prosecutor and the judge all essentially representing the same institution. I thought in this country we had a fundamental principle, that the person who investigates and prosecutes isn't the same person who judges.

To date, we've filed three complaints against two Winnipeg solicitors with the Law Society of Manitoba regarding their conduct in the lawsuit against www.CyberSmokeSignals.comy. Our assessment - unless you've got a ton of black print clearly demonstrating an attorney has embezzled at least $1 million from a client - forget it! It really is a self-serving body.

We've e-mailed The Penguin Group publishers of Lawyers Gone Bad asking Philip Slayton to contact us. Hopefully, he will.

Sincerely,
Clare L. Pieuk
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October 2007
The Law Society of Manitoba
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COMMUNIQUE
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President's Report
Doug Bedford

Prior to writing this report I did some reading. First, I purchased, reluctantly, Philip Slayton's new bood Lawyers Gone Bad. As of this date, I have read the introduction, the three chapters devoted to 'case studies' of Manitoba lawyers 'gone bad' and the conclusions with suggested remedies. Slayton and his book, of course, received significant publicity this summer in a couple of issues of Maclean's magazind. I read both issues along with a short articdle authored by Slayton in the August 4, 2007 issue of the Globe and Mail.

I read a number of articles written "in reaction" to Slayton. Two of the better pieces, in my opinion, where those of Michael Milani, the current President of the Federation of Law Societies of Canada, which appeared in The Globe and Mail on August 9, 2007 and Jim Peacock, Q.C., the President of the Law Society of Alberta dated August 7, 2007. Then I turned to past issues of this Communique, starting with the May 2002 issue, to refresh my memory as to what my immediate predecessors, Tim Killeen, Lori Spivak [as she then was], Patrick Riley, Bill Hohnston, Garth Smorang and Jon van der Krabben had to say on the subject of the legal profession and self-governance. I finished with Allan fineblit's comments on "The infrastructure of Trust" in the February 2007 Bencher Bulletin.


Self-governance is the basis of the mandate of the Law Society of Manitoba and I am not disappointed on my short trip down memory lane to see that each of my predecessors was alert to that. For example, in May 2003 Lori Spivak reminded us of the "enormous privilege of belonging to an independent bar with the right of self-governance and regulation." A year later, Patrick Riley chose, in his final report to us, to stress that we "remain vigilant to avoid erosion of our role as independent protectors of our clients." In September 2005, Garth Smorang, quoting a speaker at a meeting of the Federation of Law societies as "risk managers in the public interest." And in April of this year, Jon van der Krabben, without I think, any knowledge of what would be on the cover of an issue of Maclean's magazine three months later, cautioned his readers to "be vigilant as lawyers to do our job of protecting the public properly lest we come under justifiable scrutiny for failing to do so and undermine our ability to self-govern."
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Self-governance requires more than just dealing with "lawyers gone bad"
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It has been Slayton's criticism of self-governance in the legal profession that primarily prompted my interest in his book and the response of the public and of lawyers to it. On August 9, 2007 he writes in The Globe and Mail: "The history of self-governance by the Canadian legal profession is spotty, to say the least." He is more blunt in the final chapter of his book, where I read: "There are no good arguments for the view that only lawyers can regulate lawyers, and many good arguments for the contrary position." Is he correct? If lawyers, starting with presidents of law societies, cannot respond adequately to such criticism, then perhaps he is.

I echo Jim Peacock when I say that I think this is a proper, indeed, an important subject for debate in a free and democratic society. In my experience, too many lawyers who do not directly participate in the activities of their respective law societies give little or no thought on a day to day basis of the importance of self-governance. I am periodically surprised to hear some lawyers complain that our Law Society fails to "protect" the interests of lawyers, thereby demonstrating confusion between the role of the Law Society and the Bar Association. I wish Slayton had interviewed some of them, it might have helped him to avoid the same misunderstanding. Lori Spivak was of course correct, self-governance is a privilege and a right. I would add also a "responsibility," one that we must be "vigilant" in carrying our and in explaining to our fellow citizens if we wish to avoid the seduction of the latter by critics like Slayton who suggest, rather than prove , that there is a better way of governing lawyers in the public interest.

Self-governance requires more than just dealing with "lawyers gone bad," a fact which will escape entirely some readers of Slayton's book. I find Slayton's passing observations in his concluding chapter worth repeating here. He notes that "law school can put the child of a poor immigrant into a Bay Street bank tower" and "make the daughter of immigrants from Taiwan into a provessional." Of course, it is law societies, not law schools, which have the responsibility of determining whether the "child of poor immigrants" has become qualified and competent to practice on Bay Street and whether the daughter of immigrants from Taiwan has met the threshold to practice law in Winnipeg.

Law societies (and law schools) I though, must be doing a pretty decent job of ensuring that certain barriers which once restricted entry to the profession have been removed. Surely, it is in the public that competent and ambitious citizens have an equal opportunity to become educated in the law and that the processes for their admission to practice be fair, transparent, objective and impartial. Many persons can 'administer' tests but, frankly, who better than lawyers can design and administer programs designed to determine whether those seeking entry into the profession have a core level of competence to practive in it?

Slayton's real interest is in those lawyers who having demonstrated adequate competence on admission, reveal subsequently through their conduct that they have no sustained ability to proctice law competently, at least in circumstances which place their personal interests in conflict with those of their clients. and how well do law societies deal with such "bad lawyers?" In the case of the Law Society of Manitoba, my conclusion based on the three case studies in Slayton's book, is "very well." All three lawyers in question were identified and disbarred, which was obviously in the public interest given the bare facts regarding each which Slayton chooses to relate. Indeed, Slayton's only criticism of how self-governance worked in Manitoba with these three is a reference, with respect to one, that the "wheels" of self-governance ground slowly. However, at no time does he identify in any way that the public was prejudiced by the time which elapsed between the identification of "bad lawyering" and disbarment. He notes, correctly, that there were interim suspensions and that in one particularly notorious case, the Law Society waited until the completion of criminal proceedings before completing disciplinary proceedings.

Slayton, correctly, does not advocate for "summary" disbarment proceedings nor does he question the obvious common sense of awaiting the outcome of a criminal trial where the same evidence supporting charges of professional misconduct against a lawyer will be canvassed by a court. Slayton also passes over the obvious -- the standards of conduct applicable to lawyers, which are of course another responsibility of a self-governing legal profession to set, start with the incorporation of standards of conduct expected of all citizens in this country and then build upon those.

Slayton's chief recommendation for improving the regulation of lawyers in Canada is that we read and adopt the reforms proposed in Britain by Sir David Clementi. At the time of Clementi's report the English system did not provide for separate bodies, "law society" and "bar association," to carry out the often incompatible tasks, respectively, of "protecting the public interest" and "advocating in the interests of the legal profession." Reform thre may have made some sense. But even there, Sir David recommended that the disciplinary function, a critical responsibility of regulation, remain with the governing bodies of the legal profession. Apparently, that part of self-regulation was working well in Britain. It works will in Manitoba too.

Slayton did not choose to use a case study yet another recent Manitoba example of a lawyer "gone bad." He he researched the "Kunzman" case, he would have written, towards the end of this sad tale, that the victims of Kunzman's thefts were all reimbursed to the full extent of their respective loses through the reimbursement fund of the Law Society of Manitoba, yet another example of a self-governing legal profession protecting the public interest and carrying out well the responsibility of governing "in the public interest.

Slayton is critical of the "economic imperatives of practicing law today to which he attributes to the dependence of lawyers on 'billable hours' and "inefficient work habits." He makes the illogical linkage between the cost of legal services and self-governance. I could find no explanation (perhaps I have not read the right chapters) by Slayton as to how the elimination of self-governance of the legal profession would result in "affordable" legal services to all Canadians.

Whether or not the increase in the number of unrepresented litigants in recent years can be explained simply as a consequence of lawyers' rates rising faster than the rate of inflation or whether there are more comples reasons, I have read nothing this summer in the to and fro over Slayton's book which persuades me that "lawyers gone bad" are making it more difficult for ordinary citizens to find "affordable" lawyers. On the other hand, I have no difficulty at all in understanding, and in accepting, that any business, including the business of practicing law, necessitates that the costs of maintaining the business be passed on to the consumer.

I cold find no discussion in Slayton's book about the trends in the past decade in the costs of regulaiton of the legal profession. I found much about the topic in the 17 Communiques I read. In Manitoba, at least costs went down and they have been maintained at a level significantly below what they used to be. This is in the public interest. If the "public," including, of course, Philip Slayton wish to move the regulation of lawyers by lawyers to a different model, it would be responsible to look at what the now costs of regulation might be. Slayton provides no forecast that I could find. Whatever they might be, one can be certain that they would be passed on to the consumer.

My guess is that Slayton set out on his research with a much more interesting objective in mind and one that I would have been keenly interested in seeing him resolve. That is, why did these lawyers do it? What "made" them go bad? Slayton touches on the topic, but it appears that the answers, at least in the cases of three Manitoba lawyers remained very much a mystery to him. In January 2006, in a well written report entitled "In Trust We Trust," Garth Smorang wondered what more we can do as a profession to try to identify at an early stage lawyers who might in future "go bad." He did not have an answer. I do not either.

Slayton, in the frontpiece of his book, quotes the author Sybille Bedford's rhetorical question in her memoirs: "What does any of us know about one another?" I read this summer Sybille Bedford's account of the 1957 trial of Dr. John Bodkin Adams. I conclude with her succinct comment on the effectiveness of a court which, I think, is equally appleciable to the challenges of self-regulation: "But the ends of a court of law are relative, limited, and temporal; the best must be made, here and now, of the best that can be got. Fallibility is not a specter but a calculable risk, and we plod on." (Sybille Bedford, The Best We Can do)
..... to be continued

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