BarTalk August 1999
Volume 11, Number 4

Part 1: 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) board 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 One of a two-part series of excerpts from their conversation.

Mike Harcourt
Every institution is scorned and reviled at the minute—welcome to the club! There are no sacred cows anymore, and I think it’s to the detriment of our society. I remember when people I talked to used to be excited about running for public office in the 60s and 70s. Yes, the media would put your feet to the fire, there would be criticism, but not to the extent it’s got to now. By the 80s, it was seen as too much of a sacrifice of privacy, income, profession and family. In the 90s, in the face of the abuse of politicians, they just instantly laugh at you—“why would I want to do that?” I’m not saying we shouldn’t have criticism, but we’ve gone overboard, trashing anything that moves, with unhealthy massive critiques against all institutions.

Joey Thompson
I think it’s a good thing; it’s healthy. Consumers are much smarter today. They demand increased accountability, and will no longer be satisfied with “don’t worry” from the doctors and lawyers and priests and whatnot. They may have too much information, and not enough accurate information is part of that mix, but in the long run it’s still a good thing to have them in the know, to be asking more questions and be more critical. I don’t think we should be surprised at what’s happened. Over the years, people put their lives, their safety, their emotional, physical and legal health in the hands of “professionals” and they have been abused. As these issues have been aired in public, respect for the professions has declined. I agree that the pendulum has swung too much in one direction, but I think it will swing back.

Jennifer Conkie
The negative stereotype of the lawyer has been around a long time, and I don’t know if it’s any worse now or not. I’m in favour of consumer empowerment and consumer know-ledge as a good thing, but how does the individual lawyer deal with the myths and stereotypes about her profession? I think we have to earn public respect and trust, but I am aware of lawyers being viewed in a hostile way before being given a chance.

Stephen Owen
We live in a time when all political platforms are basically the same— everyone says they want open and honest government, a strong economy, a healthy social environment, to look after kids, and so on. Unfortunately, instead of this resulting in a real populism, where everyone can band together, the decline in ideology presents a vacuum filled by the “politics of envy”, where people connect only through a false populism, an alignment of otherwise unconnected negatives. The defeat of Meech Lake was a good example of this.

The politics of envy takes, for example, the word ‘elite’ and twists it from what it meant to us in the past—the pursuit of excellence, hard work, leadership, self sacrifice, some sort of public interest—and gives it negative attributes—pampered, unaccountable, unjustly enriched, something sleazy. It’s thrown at people who are seen to have an advantage in life, some sort of privilege, such as the legal profession. And people who might otherwise not agree on anything, band together “against” the idea of an elite. We could avoid some of this through simple things like removing the overhead...my doctor’s office is plain, with a simple waiting room, small cubicles, nothing fancy. But walk into a lawyer’s office and you’ll see great artwork, beautiful views, expensive furniture...all things the client knows he or she is paying for. As the public becomes less and less able to pay for these things, and as the system fails to become more simple or accessible to them, we invite this kind of criticism in portraying luxury as a part of the package of being in the legal profession.

Joey Thompson
Other professions have been able to deal with this change. You can’t go back, but you can do things to offset—and that’s the best you can hope for—some of the negative changes. The legal profession and judges have been very reluctant, if not downright resistant, to anyone telling them what to do. I’ve had discussions with judges who are appalled at us, the media, criticizing a judgment. There is resistance to any kind of opening up of the system to public criticism. The judges still haven’t let go of the “just trust me, I know what’s right” attitude, and they’ve got to stop—the public is way beyond that.

Stephen Owen
There is a positive message that is capable of getting out too, though. The coverage of Louise Arbour by the media has probably done more for public perceptions about the legal profession and the importance of law and the high quality of judges than any kind of public relations campaign could ever have done.

Joey Thompson
There are things that lawyers could do collectively that could enhance their image in the media. Who do reporters turn to if they have a legal question or they need clarification of a judgment or case? Lawyers won’t talk to us for the most part. I have my own contacts, but where are other reporters, especially new ones, to go? I think more accessibility to help explain the system could help offset some negatives.

Mike Harcourt
Some of the lack of accountability of the old institutions deserved to be opened up and exposed, but I think we’ve gone too far. I hope Joey’s right, that we’re going to come back to a better balance of critical role of the media and the right of the public to know. There is so much data available, it’s mind-boggling to determine what’s good information and what’s crap. What the legal system needs to do is get simpler, less expensive, less time consuming. I agree that some of it’s overhead, but some of it is the system itself—it’s too slow, too cumbersome, too complicated. And I think the system is out of step on certain types of crime —the really violent, dangerous, systemic, long term crooks are not being dealt with appropriately in the opinion of the majority of the public.

Mike Harcourt
But it’s just not easy to be a lawyer these days either. You don’t see Stephen or I rushing back from public service to practice law in the traditional way. It’s a billing rat-race to pay the overhead now, and every lawyer—young and old—has to work night and day to put in enough hours to stay with the firm. It’s gotten so complex, I think being a lawyer is a tough way to earn a buck. And the complexity of the system means its hard on clients’ pocketbooks too.

Stephen Owen
I think that yes, we have to worry about image and about ways to relate better to the public. But I think what will really change the profession’s image over time is the broader conditions in which the profession is operating in.

Because of the cost and delay in the courts, the market and the government are providing cheaper, simpler, faster alternatives to the delayed, complex litigation system. Mediation schemes of one sort or another are in great demand. Government is demanding them because the courts are too expensive and we can’t afford to keep expanding; judges are demanding them because they’ve got backlogs and double-bookings; but more importantly, the public is demanding another approach. Mediation usually means, in the end, a better, quicker, more satisfactory solution for clients. That trend alone will improve the general profile of lawyers as the practice becomes more wide-spread.

Then there’s the convergence of sectors, from government to corporate to NGO to academic. It’s becoming, if not a prerequisite, certainly a competitive advantage to have worked in more than one sector. Globalization of the practice of law is another growing reality: you can be in provincial court one day, and in a war courts tribunal the next, and you don’t have to be Louise Arbour to have that happen. You can be doing mining law on a deal in Chile, and fighting employment discrimination somewhere else. And multi-disciplinary practices are also on the increase, with lawyers working with psychologists and sociologists on dispute resolution, and with business management consultants and accountants on international corporate transactions. The end result of all of these trends is that lawyers will become less pigeon-holed in terms of how the public thinks of them.

Joey Thompson
The reality is that right now, people feel that lawyers are more respectful of and more obedient to the process, the judiciary and other lawyers and whatever else is going on, and the last person they’re really concerned about is the client. Whether it’s true or not, that’s the perception. The reason you don’t have any credibility is that you’re not accessible to your clients and you’re not, judges in particular, accessible to the public.

Jennifer Conkie
Personally, I was confused by the pressures of the large firms, the office politics, overhead concerns and what drives the search for certain types of clients, so I started my own practice. I very much centre my orientation around provision of service to clients, with a view of myself as facilitating and yes, sometimes even quarterbacking them through the morass. Whatever formalism and whatever technical niceties and erudition we lawyers still cling to out of necessity or habit, the fact is that we have to be adaptable and flexible and very effective communicators with our clients.

I’m very much in favour of sitting across the table from my client and coming down to the bottom line which is that we’re trying to find the best way we can through conflict. The problem isn’t going away, the dispute isn’t going away, but we’re trying to sort out a methodology which is respectful of the formalism and the process and the judiciary. If each of us who have that kind of integrity are flexible and adaptable and respectful of the process, there will be a collaborative exercise that goes on, and there will be greater respect for the lawyers’ skills and the justice system at the end of the day.

Part Two of this discussion will be published in the October issue of BarTalk.

This article was published in the August 1999 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.