Ian Mulgrew: Law Society divided, access-to-justice fuse burns
Attorney General David Eby is expected to release the latest report on legal aid Monday, a three-month study delivered in January. It will not be enough.
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After nearly two decades of a continuing access-to-justice crisis, the Law Society of B.C. remains divided on a solution and can’t agree on even token measures.
The benchers have sent back for further study a seven-year-old proposal to allow licensed paralegals to offer cheaper legal services and rejected a suggestion to give a nominal educational credit to lawyers for doing charity work.
“In that light and in my view, denying continuing professional development (CPD) credit for what amounts to cultural competency learning around low-income and marginalized people and their legal needs would be a missed opportunity and would send the wrong message to the outside world,” warned bencher Jamie Maclaren, Access Pro Bono’s executive director.
“It could reinforce the popular notion that the Law Society and its members are self-interested and out of touch with the public they are entrusted to serve.”
The lack of action is an indictment of the legal regulator after a generation of non-stop alarums about barriers to justice and a threatened legal aid strike April 1.
“With great respect, it is not something that’s lost on the members of our profession that we live in an inequitable society, a society that has got a great number of people who are challenged economically and, as we even walk to this building, we have to walk past people who sleep on the street,” said bencher Martin Finch, of Baker Newby LLP.
“I find it challenging to suppose that if one were not to accept your resolution it would somehow be sending a message to the public that we are self-interested. I really struggle with the idea that the vast majority of lawyers in our province are unaware of the complexities of living life in this society in these times. It is not something that requires you to have specific acquaintance with a disadvantaged person. That’s well, well known. It’s common in the media.”
Bencher Craig Ferris, of Lawson Lundell LLP, echoed him: “I don’t think there is any encouragement or value in it. It’s something we as lawyers do as window dressing to say we have done something when we haven’t really done anything.”
Phil Riddell, of Philip A. Riddell Law Corporation, dismissed the idea out of hand: “I think it is presumptuous of us to say that sitting down with someone in the courthouse and chatting with them for half an hour in some way provides me with some level of education and some benefit to the person I’m talking too.”
Karen Snowshow, of Snowshoe Law, was astounded: “I was that child, I was that poor child, in and out of foster care, with a mother with addictions, who experienced incredible trauma. … And I don’t appreciate the characterization that interviewing people is just chit-chat in a coffee shop and I don’t agree that our profession as a collective is necessarily engaged as much as they could be in pro bono work.”
Sixteen years after the Legal Service Society budget was slashed by 40 per cent and programs for the neediest decimated, the legal profession continues to whine about rising barriers to justice while doing little.
The system is clogged because it is dysfunctional and too many people must represent themselves. They can’t afford lawyers, there aren’t enough lawyers to meet demand, so fees stay too high, and, because lawyers have a monopoly, nobody else can provide legal services.
Add chronic legal aid underfunding with the growth of charlatans offering services and the decline in public confidence should come as no surprise.
The Association of Legal Aid Lawyers insists the situation is so bad the rule of law is threatened, so they are threatening a provincewide service withdrawal without massively increased funding.
The law society, however, recently rejected fee reductions and more progressive fee arrangements for public interest and legal-aid practitioners to encourage lawyers to do access-to-justice work.
On Friday, the benchers kept licensed paralegals in limbo and, after a year of study and an hour of debate, voted down the proposal to give a two-hour CPD credit for interviewing pro bono or legal aid clients.
The aim was to give lawyers a first-hand look at the problems of the underclass, help the mostly over-achieving white folk understand the life of a disabled person living in the Downtown Eastside or a First Nations’ family on a rural reserve.
“I see enormous educational value in communicating with the sizable population of low-income British Columbians who will never approach a law firm door for legal help that they cannot afford,” Maclaren argued.
“We would be encouraging our members to get out into their communities to learn more about the access to justice issues that low-income people confront on a regular basis … (and to) make the profession more relevant to regular working people.”
Lawyers already earn CPD credit for taking a wellness course or using the law firm self-assessment tool. But there will be no credit for improving compassion.
President Nancy G. Merrill, of Merrill Long & Co., cast the deciding vote.
Instead, the benchers will form a coalition to raise awareness of the vulnerable and disadvantaged who are unable to access legal advice and representation.
How novel.
If the access-to-justice time bomb were a new threat rather than a generation-old tragedy, such a move would be appropriate. It’s not.
The Legal Aid Task Force presented its report at the March 2017 bencher meeting and Len Doust presented his public commission report in 2011.
With more than a decade of reports and speeches from everybody from the chief justice of Canada on down, I don’t think the access-to-justice crisis is a secret — and it’s not only the poor who are affected, it’s the middle-class as well.
“I can’t afford myself,” was one quip at the benchers’ meeting that got laughs.
The societal damage of the access-to-justice crisis increases daily and the public frustration at being unable to afford licensed legal services grows.
The poor, the challenged and Indigenous people drastically need help and there are massive unmet legal needs across the province.
Attorney General David Eby was said to be releasing Monday the latest report on legal aid, a three-month study by Maclaren delivered in January. It will not be enough.
Although increased funding for legal aid is required, it is not a panacea; a basket of solutions is essential — modernization, law reform, procedural improvements, more judges …
It’s time for the Law Society to live up to its public-interest duties — to preside over the opening up of the legal market to meet the need — or, as the U.K. did in 2007, the government should step in and end the monopoly.
Regardless, the NDP has continued the hard-hearted, thick-headed legal-aid policies of its predecessor and the silence of its supporters is deafening.
It is also time to take Eby to the woodshed: At a minimum, he should restore legal-aid funding.
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