As an articling student in the mid-1970s, Brent Cotter regularly trotted over to the Saskatoon law courts to handle chambers motions. After the work was done, the real learning began.
U of T law school dean Mayo Moran, left, and Ontario Court of Appeal Judge Stephen Goudge are spearheading the professionalism movement. PETER POWER/THE GLOBE AND MAIL
U of T law school dean Mayo Moran, left, and Ontario Court of Appeal Judge Stephen Goudge are spearheading the professionalism movement. PETER POWER/THE GLOBE AND MAIL
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Mr. Cotter, now dean of the University of Saskatchewan's law school, would hang around in the large conference room, observing the way more seasoned counsel articulated their causes, elegantly conceding ground or standing firm. “I would stay the whole morning and watch, with the blessing of my [law firm's] principal,” he recalled in an interview.
“It was a small firm, but the principal understood that this was a learning experience for me. You could learn a lot from the best and most respected lawyers – and come to see why they were so well respected by the other lawyers and by the judges. And you could learn what not to do through watching certain others.”
Sadly, that valuable experience is much less available nowadays, largely because of the business pressure placed on law firms. Young lawyers are under the gun, stressed out by the demands of a work world that measures worth in 15-minute increments.
Professor Cotter spoke of a recent encounter he had with a young law clerk, who insisted that he could never get away with sacrificing billable hours for an opportunity to watch senior colleagues in action. “You stay and watch,” he told the young man. “I'll go and explain to your firm why there will be no billable hours.”
The story is symptomatic of a worrisome trend – the erosion of professional standards as billings take precedence over the long-term development of proficient, ethical, well-rounded lawyers. With public criticism of the legal profession on the rise, a call for more exacting professional standards has taken on new urgency.
The first task for proponents of the professionalism movement has been defining what they mean. By consensus, it appears to boil down to civility; mentoring; continuing education; maintaining client confidentiality; avoidance of conflicts; and maintaining independence.
“It has to do with the notion that being a lawyer does not mean simply holding a job,” said Ontario Court of Appeal Judge Stephen Goudge, a moving force in the campaign. “This is about being part of a profession that is given a stature and a certain prestige and, in return, includes a significant service component.”
Evidence is mounting that the movement is more than hot air. The Law Society of British Columbia recently became the first regulator to mandate compulsory continuing education for lawyers. Others intend to follow suit, including the Law Society of Upper Canada, which will make extra training compulsory for lawyers in their first two years of practice.
Institutes have also sprung up, such as the Chief Justice of Ontario's Advisory Committee on Professionalism and the University of Toronto's Centre for the Legal Profession.
Across the country, law schools are adding ethical training to their curriculums. The number of law students enrolled in a course on professional responsibility grew to 80 per cent in 2008 from 25 per cent in 1985. Over the same period, the number of law schools that include compulsory ethical training in their curriculum has grown to 16 from two.
“The momentum in the law schools is spectacular,” Judge Goudge said. “But the rest of us have to pick up our game.”
That could present a challenge.
After all, it is one thing for second-year law students to become engrossed in a debate over conflicts of interest. It can be quite another for a Bay Street lawyer to risk losing an important client over a marginal conflict of interest, or because a client is intent on “motioning” the other side to death.
Those who are pushing professionalism must come to grips with a business model of law that places a premium on retaining clients. As Cornwell University law school professor Brad Wendel told a U of T symposium on professionalism last week, sharpening your ethical acuity can be difficult when you are “maniacally billing 2,200 hours a year.”
There is hope. U of T law dean Mayo Moran, who has been touring law firms to test the waters on the professionalism debate, said she detects a growing desire to shore up ethical standards and mitigate the billable-hours mentality.
Notwithstanding the professionalism movement's focus on lofty motives, there is also a defensive undertone to it all. The profession is undeniably under siege.
At the Law Society of Upper Canada, complaints involving ethical shortcomings jumped to 31 per cent of total complaints in 2007 from 11 per cent in 2004.
Moreover, the news media never tire of stories involving the difficulty of gaining access to justice, often juxtaposing greedy or unethical lawyers with the lack of timely access for all but the wealthy. The theme reached a new high, or low, last year with a Maclean's magazine cover story that characterized lawyers as “dirty rats.”
The profession is fighting a potent narrative line alleging that the practice of law has declined from a golden age – when lawyer-statesmen operated with a communal sense of honour – into a grubby little trade whose practitioners scrap for the right to gouge clients.
The trashing of his profession “drives me into a spiralling funk,” Judge Goudge said. “But I think it is a bit of a mug's game to try to analyze just how deep the hole might be in the eyes of a particular perceiver. The point is that we can clearly improve things.”
Prof. Moran agreed: “It isn't that we were worried about the Maclean's story. It's more that we feel it would be helpful to think in a more sophisticated way about these issues.”
Either way, if the public loses confidence in its lawyers, the profession could lose the right to govern itself. “The organized bar lost this debate long ago about self-regulation in the U.S.,” Prof. Wendel warned.
The key question for the professionalism movement lies in whether counsel – not only academics and law society benchers – also buy into it. The answer is likely to hinge on whether the movement maintains a sense of realism about life in the legal trenches.
“There are no easy answers as to how a lawyer gets it exactly right between being an officer of the court and being somebody who serves the interests of their client,” Prof. Moran said. “I think the best thing we can do is have a really vigorous discussion about it. Because every lawyer is going to face those questions all of the time.”
