Legal profession: HALT the madness

"Sadly, this pattern of laxity, secrecy and delay is nationwide. According to the most recent American Bar Association statistics, more than 93% of attorney discipline cases lead to no punishment, and when discipline is imposed, it usually amounts to a slap on the wrist."…As HALT suggests, non-lawyers should have a majority voice on disciplinary panels, all hearings should be open to the public and results should be fully published.

National Post
November 18, 2003

Legal profession: HALT the madness
Abuse runs rampant on both sides of the border
Diane Francis

I have received thousands of e-mails supporting my series of columns about the legal profession's unjustifiable privileges and how lawyers should be barred from holding political office.

South of the border, lawyers are under fire on two major fronts, the cost to the economy of litigiousness and removal of so-called self-regulation.

In Canada there's no debate because the legal profession runs this country. The office of the Canadian Prime Minister has been occupied since 1968 by a lawyer and this has set the national legislative tone.

In the U.S., the Republican Party has led the movement to curb lawyers because they are sue-happy and it's costing the economy a bundle.

The big issue there is the cancerous growth of tort actions, or lawsuits seeking damages for grievances. "Jackpot justice" — outsized compensation for even the smallest grievance — is damaging the economy.

Insurance consulting firm Tillinghast-Towers Perrin claims that tort costs represent 2.33% of the entire economy, up from 1.54% in 1980. That doesn't include legal fees, or the costs to the public associated with tying up the courts in this way.

"Tobacco, asbestos, and medical malpractice claims are just a few of the culprits. With mould, investor lawsuits, and possibly fat entering the litigation panoply, Tillinghast estimates the costs could reach $1,000 per citizen by 2005," said an article in a New York magazine.

Costs are rising here too. In Ontario, tort costs involving automobile accidents have jumped by more than 80% in just five years, according to the Insurance Bureau of Canada.

Other tort costs are on a steep curve upward as well as the ambulance chasers in the legal profession, and the judicial bench conspire with lawmakers to replicate the American mess.

The same worrisome legal industry has sprung up here, with frivolous and exorbitant charter challenges, aboriginal cases, divorce fights, class action cases and needless immigration/refugee adjudications.

(The Charter mess was predictable. Years ago, a retired judge said that Trudeau's ambiguous Charter of Rights and Freedoms should be more accurately called "The Lawyers Full Employment Act").

As the economy is forced to bear this burden, because lawyers feather their own nests all the time, there is the issue of lack of governance by that profession. Their biggest, unjustifiable privilege (besides being allowed to run for public office) is that of self regulation. It simply doesn't work.

A U.S. organization out of Harvard University devoted to attacking lawyers, called HALT, outlined in a letter this year to the Washington Post why so-called self-regulation by lawyers is a sham. Same applies here.

"The June 15-16 front-page [Washington Post] series exposed ugly abuses of the District's most vulnerable residents by unethical lawyers. It also confirmed our findings that the attorney discipline system fails to afford justice to those who are victimized," it wrote.

"Sadly, this pattern of laxity, secrecy and delay is nationwide. According to the most recent American Bar Association statistics, more than 93% of attorney discipline cases lead to no punishment, and when discipline is imposed, it usually amounts to a slap on the wrist."

The group recommended three fundamental reforms to bring this profession to heel:

1. Replace the failed system of self-regulation —lawyers policing lawyers — with disciplinary panels on which non-lawyers have a majority voice.

2. Open the disciplinary system by abolishing gag rules, replacing private reprimands with public discipline and releasing lawyers' full disciplinary histories.

3. Justice delayed is justice denied. Disciplinary hearings should be held within 90 days of a complaint being made and the lawyer must attend.

Here in Canada, the situation is worse. There is neither transparency nor accountability.

The professional self-regulation responsibility is carved among the 12 different political jurisdictions into law societies in the 10 provinces and three territories.

A check of two websites shows that the names of lawyers who have been disbarred are published. There is also archived information available containing the names of past culprits. But there is no publication of those whose wrists are slapped in any way.

Most significantly, there is no national figure published as to the number of lawyers who have been hauled into hearings and the percentage which have been disciplined. The American Bar Association publishes this and, as stated above, admitted that 93% of lawyers went unpunished and the rest received mostly wrist slaps.

A Canadian Bar Association spokesman yesterday explained that the national group doesn't collect figures from across the system because the law societies are the disciplinarians.

For these and other reasons, lawyers must be stripped of self-regulation. So should doctors but that's another topic.

As HALT suggests, non-lawyers should have a majority voice on disciplinary panels, all hearings should be open to the public and results should be fully published.

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© Copyright 2003 National Post


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