Part 2: Four perspectives on the legal profession

BarTalk invited four individuals with different perspectives to consider some of the legal profession’s challenges as we prepare for the new millennium. Participants in this discussion were: Mike Harcourt, senior associate, UBC Sustainable Development Research Institute (SDRI), and former Premier of BC; Jennifer Conkie, practising Vancouver lawyer and West Coast Legal Education and Action Fund (LEAF) member; Stephen Owen, QC, law professor, dispute resolution practitioner and former BC Ombudsman; and Joey Thompson legal affairs columnist and editor of The Province newspaper. This is Part Two of this series of excerpts from their conversation.

The relationship between the public and the institutions of our society has changed. Those who were once held in high regard in our communities —the doctor, the lawyer, the minister or priest— are no longer on a pedestal. In your opinion, is this a good or bad thing? What can lawyers do about it?

Joey Thompson
Many lawyers are resistant to mediation, and law schools need to start including, if they don’t already, conflict resolution and mediation skills because that’s where the profession is headed. And lawyers aren’t necessarily skilled in that kind of resolution process--it’s an entirely different set of skills. You also need accessibility to clients. The reason you don’t have any credibility is that you’re not accessible to the public. Judges certainly aren’t seen as human beings... they sit up there on the bench in some sort of ivory tower. Now I am exaggerating for the purpose of making the point, but this is how people see it and for good reason. When was the last time you heard a judge speak, or have any sort of human qualities about him or her?

Mike Harcourt
Maybe we need a focus in law school, or in the professional training education course, on how to treat a client, and that would be part of the curriculum. Bedside manner. The same with judges. How to deal with the public and public perception and public attitudes.

But the profession has, in the past, come to grips with some of these fundamental issues. I think back to my own experiences coming out of law school, with the start up of the legal aid system, and the community lawyer program and the law student’s legal advice clinic and working on the Canadian Bar Association lawyer referral program. And those things were initiated by lawyers very aggressively because the old pro bono system wasn’t working. You know, going down to the old courthouse which is now the art gallery and sitting around the pillars with these poor clients climbing up the stairs and into the after hours courthouse for Harry Rankin and others to take on the work pro bono, was not justice. So, we pushed for comprehensive legal aid and John Turner, who was Prime Minister at the time, started financing legal aid schemes across the country. We started with criminal law and had to push hard to get civil law included, because at the time it was against professional ethics to do civil actions on contingency or to advertise what your specialties were. The profession pushed to get community law offices, with provincial cost-sharing, and we had a community law conference which brought troublemakers like myself together with people like Bobby Cooper, from Point St. Charles, Montreal, Parkdale Clinic in Toronto and others to start focusing on clients rights of tenants, welfare recipients, debtors — all those on the other side of the system, because the legal system basically represented banks, creditors, landlords, large institutions at the time. There were a lot of very conservative Benchers who were part of the steering committee that we established to set up community law offices and the law student legal advice clinic and these other things, but there was a sense right across the profession that we needed to make changes to make the system be more fair to everybody. So I think there is a capacity in the profession to make these changes. Whether they will or not, is the next question.

Stephen Owen
I think there is too Mike. I followed you on that legal aid wave out of law school, and got involved in a lot of that. In many ways it’s unfortunate that it’s become institutionalized. We changed the system so it was accepted, and it’s far from perfect now, but it became institutionalized and bureacratized, and maybe that’s just because the major battle was won. The battle now is for lawyers to redefine their idea of success and their relationship with their client. They are no longer a principal to take charge and get things fixed and get things won; they’re facilitators of good results for their clients. Which means not just winning, but making sure everybody—if it’s a dynamic relationship—comes out of it winning somehow, so that it will endure. That’s an attitudinal shift. I think to a certain extent it might be led by visionaries, but more importantly it will be led by circumstances, rapidly changing circumstances. Everything’s changing so quickly, and what’s really changing is that the public is not getting what it needs from the traditional litigation approach and so they’re looking for mediation opportunities. Law schools are now starting to spend much more time on these issues, but still not nearly enough. What core courses do you have at law school? Evidence, civil procedure, criminal litigation, appeal practice —all concentrating at the very far end of the litigation system. We’re just starting to see more mediation, negotiation and commercial arbitration courses.

Joey Thompson
I’ll agree, but how long does it take? They were mediating and arbitrating 20 years ago and I haven’t seen the legal profession jump on it big time and they’ve had, to be fair, a decade. Maybe what we need to do is maybe bump that process up a bit, to speed it up.

I would add one more suggestion to this debate, because you keep saying, and I know it’s true, that there are individual lawyers and groups of lawyers accomplishing good things. You need a stronger voice to get that kind of information out to the public, obviously through the media, in one way or another. Where are your community leaders from the legal profession, for example? Where are your lawyers who will speak on behalf of legal judgments whether it comes from the Supreme Court of Canada, or whether it is a Provincial Court judgment. Where are your spokespeople to give advice on say, the constitution, and Svend Robinson’s pitch about not having God in there. Rather than wait until the media person phones the CBA or the Law Society and say “who’s your constitutional expert?” why don’t we have some intelligent, knowledgeable lawyers as point people here in the province who will speak to the media about these issues, and who will take 10 minutes to return the call within hours rather than days. The legal profession is very standoffish with the media, and that’s for reasons steeped in a whole lot of history.

Mike Harcourt
The reason is a four-letter word: fear. I think most lawyers may be very articulate in dealing with other lawyers and clients and courts and those sort of situations, but are afraid to deal with the media, because they don’t know how to deal with them or, if they have dealt with the media, it has come out very unfortunately. So I think that’s part of it; a huge apprehension. So what you need to do, and I agree with you here, is you need to have people who are point people like the spokesperson like Ann Drennan, for the Vancouver Police Department, who is absolutely brilliant. And what you probably need is for the CBA to think about the major issues, that the public are pounding at the gates about, or that we anticipate as leaders that should or will be dealt with. And let’s surround them, do some workshops and some brainstorming with people that are in those areas. Develop with some media-skilled people a communications strategy and roll out a five-year game plan for communicating with the public.

Jennifer Conkie
We have that system in place: I sat as a chair of one of the Sections of the BC Branch of the CBA for two years and we as chairs went to media training sessions. It was part of our mandate to take calls in whatever Section we were chairing. So the mechanism is supposed to be in place. You can’t have one person, like Ann Drennan, to answer questions about tax law and questions about criminal law.

Joey Thompson
I know you put out a handbook every year, “Contacts for the Media”, with branches and committees for every province across Canada, names and phone numbers and all that. But it’s not enough.

Mike Harcourt
Let’s say you had a media/CBA workshop on the issues that need to be addressed. We could have people like yourself who know the courts, and George Garrett, who really understand the legal systems, who come and have a frank workshop, to look at where are the perceptions that the media and legal profession have about each other and how do we deal with the public on some of the issues that are important to them.

Joey Thompson
But how are you going to get around this problem? Jennifer will talk to me and I’ll quote her in the paper and I’ll probably get her right and in any event she has to go before a judge next week on an issue somewhat perhaps related to the family law discussion she had with me. That’s the fear. The fear is not being burned by the media. If you peel back that layer, the real fear is saying something to the media, right, wrong, out of context, in context, is going to be taken badly by the person on the bench.

Mike Harcourt
Even if that is the fear, you can have someone at the law school, or somebody who is disinterested, who is has nothing to lose commenting.

Stephen Owen
I think it has changed over the years. The right to advertise has caused lawyers to be much less reluctant to be interviewed. There used to be a great fear that the Law Society would find them to be self-publicizing. Those issues have been much clarified, and just in terms of the growth of the profession and the greater anonymity within the profession, it’s not an old club where every judge knew every lawyer and watched over what they said. There’s lots of things they can do to answer the need that you’re identifying. We’ve got to be careful of trying too hard and being seen as being too slick and too public relations-oriented. I think the legal profession will, over time, have its image changed because it’s reacting to different circumstances and will be performing differently. I also think the public is getting more and more aware, with globalization, of the importance of the justice system. Now if you have mutual fund investments in South East Asia, you all of a sudden become very aware of the need for transparent banking laws and the right to have honest courts, and a political system that doesn’t just favor brothers-in-law of presidents in power, or systems that are brutal and you have terrorism in reaction and therefore investments are disrupted. Generally, I think we are becoming much more conscious as a society that what we’ve got here is a real gem which is a rules-based, rule of law system that cannot be taken for granted.

This article was published in the October 1999 issue of BarTalk. © 1999 The Canadian Bar Association. All rights reserved.