Profit pursuit imperiling professionalism

Chief Justice Warren Winkler emphasized that access to justice is “the single, fundamental, most important issue to the justice system in this province today.”,,, “The emphasis certainly, and decidedly, was not on making a lot of money, was not about being in business. It was not about materialism, and it was not about acquiring a lot of assets or a lot of worldly goods. The emphasis was on the professional aspect.”

The Lawyer's Weekly
April 18, 2008

Profit pursuit imperiling professionalism
Cristin Schmitz

Warren_Winkler.jpg

Chief Justice Warren Winkler recently warned lawyers against “having an involvement in the business aspects of one of their client’s businesses.” Paul Lawrence for The Lawyers Weekly

Lawyers’ drive to garner high incomes from private practice is making legal services unaffordable to the middle class and undermining lawyers’ professionalism.

That uncomfortable proposition was a clear thread woven through the comments of leading lawyers and judges here at a University of Ottawa conference on legal professionalism last month.

Canada’s top judge, Beverley McLachlin, set the tone by admonishing the audience of practitioners and law students that “we can’t take the business out of law, but we have to put professionalism back in the driver’s seat.”

“Let’s face it, we are falling down on access to justice,” the Supreme Court’s chief justice remarked.

She noted that the “pressure to earn can push fees higher, and it can also affect access to justice. It can squeeze out work that is good for the public, and sometimes good for lawyers.”

“We must remember,” she stressed, “with the privilege of self-regulation comes the obligation of professionalism, and we must never forget our vocation and obligation to serve the public good.” Ontario’s top judge delivered a similar message. Chief Justice Warren Winkler emphasized that access to justice is “the single, fundamental, most important issue to the justice system in this province today.”

He contrasted the profession’s current high expectations of income and its move in the 1980s to dockets and billable hours with the situation when he started practicing in Toronto 43 years ago. “What it was really like, I guess, was that people thought that it was at once a question of practising a very honourable profession, and making a decent living,” he recalled.

“The emphasis certainly, and decidedly, was not on making a lot of money, was not about being in business. It was not about materialism, and it was not about acquiring a lot of assets or a lot of worldly goods. The emphasis was on the professional aspect.”

Chief Justice Winkler said no one kept dockets in those days. The amount of time spent on a case “was determined entirely on what the case called for, and how thoroughly you wanted to be prepared. It had nothing to do with how much you could charge,” he said. “It was about personal pride, and doing the best for your client… and it was about doing the best thing you could do for the court that was going to hear that case.”

He alluded to a leading employment law case decided years ago which was argued by senior counsel but which involved only a thousand dollars or so. “The fee would have been insignificant,” he remarked.

At that time legal entrepreneurialism meant running an efficient law office, not “taking a share in your clients’ business and… making a lot of money out of it,” he added.

“People who were lawyers, but thought that their primary interest was either in making a lot of money, or in business issues, left the practice of law and went into business. They didn’t mix it up with their legal profession.”

Now many lawyers have higher income expectations, he noted. But when they both practice and get involved with the business of their clients, “there is a risk that the public will perceive that the professional lawyer… is not devoting their entire focus, [their] undivided attention to [the client’s] problem if they have this distraction… of having an involvement in the business aspects of one of their client’s businesses.”

Senior civil litigator Margaret Ross of Ottawa’s Gowling Lafleur Henderson, who was called to the Bar in 1976, said the public no longer has much faith or trust in lawyers who they see as “self-interested, money-obsessed champions of the corporate world and not as the allies of ‘the little guy’. In their view, lawyers are somewhat like politicians: not to be believed, fickle and motivated by self-interest.”

Ross said the public’s jaundiced view is unsurprising given that “we ourselves may have forgotten what a life in the law is supposed to be about.” In her key note address to the conference, entitled “Challenges to the Standards of Professionalism in the Legal Profession,” Ross suggested “perhaps we have ourselves to some extent, lost sight of the fact that law is not simply a business. It is a calling. It is no coincidence that the words ‘advocate’ and vocation’ both come from the same Latin root: vocare, meaning ‘to call’.”

Ross said that in exchange for its self-regulating monopoly, the profession must act with integrity and discretion and put the public’s interest ahead of its own. “Without these conditions, we are little more than the purveyors of costly consumer services.”

Ross identified economic pressures, and the delays flowing from the present preoccupation with process in civil litigation, as two rising threats to lawyers’ professionalism.

The growing cost of legal education, and the fact that many lawyers do not come from privileged backgrounds and are saddled with big debts upon graduation, put financial stress on lawyers, she suggested. “It is trite to say that lawyers should get paid for their work. At the same time, it is disconcerting that a lawyer’s worth is increasingly often measured solely in terms of dollars. More and more, financial considerations have become the guiding force behind the modern law firm.”

Such pressures can negatively affect the quality of work and advice as lawyers do not have enough time for reflection and analysis, she said.

Ross argued the future of the profession will be imperiled if financial pressures lead lawyers to jettison such non-billable activities as pro bono work, mentoring younger lawyers or participating in professional organizations.

Ross said over-emphasis on the billable hour also feeds disillusionment among lawyers, who may not feel a sense of accomplishment from their work. “We need to remember that we chose law school over business school for a reason,” she remarked.

She also pointed out that the percentage of lawyers opting for private practice has plummeted from 65 per cent in 1994 to 53 per cent in 2005.

“More and more lawyers, not only female, are making it abundantly clear that they don’t want, or need to be, one of the ‘Top 40 under 40’ or a ‘Lexpert’-recommended expert in their field,” Ross observed. “More and more lawyers are saying that they don’t want or need to make millions, and may not even want to join the partnership.”

Ross urged law firms to respond to this phenomenon with options and choices about hours, status and remuneration. Otherwise, she warned, the profession faces that prospect that in 20 years time “there will be no one left to ‘run the show’.”

http://www.lawyersweekly.ca/index.php?section=article&articleid=658


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