Monday, April 04, 2011
THE SEARCH FOR JUSTICE. How much justice can the average Canadian afford? Isn't THIS is why we become political?
Excerpt from Lawyers Gone Bad,
CHAPTER 16, p. 311
By Philip Slayton
How much justice can the average Canadian afford? None. For financial reasons, he is denied use of the legal system and courts, key institutions of government and democracy. It is as if the right to vote in a general election were given only to those with an income above a certain level. Do not look to the legal profession to solve this problem. The answer will not be found within legal culture.
In 2004, average after-tax earned income for a "non-elderly" male living in Canada (a Statistics Canada category) was $28,300; for a "non-elderly" female, $24, 400. If this is how much money you make, you won't get legal aid (available only to those who are really poor), and will almost certainly be denied the pro bono legal services that socially concerned lawyers occasionally offer. If you need a lawyer, you'll have to dig into your own pocket. In the cities, even a junior lawyer charges $200. or more for an hour's work. A routine matter can cost as much as a mid-priced car. Fees of this magnitude are beyond almost everybody's ability to pay ...
Law school encourages cosmopolitan desires and pursuits. It reaffirms traditional values. It teaches what the economist Paul Seabright has called "the narrative". Students are encouraged to anticipate wealth and power; they are told how to serve the rich, for it is only the rich who can afford lawyers; they are taught rules, technique, and toughness, and learn to avoid emotional involvement or moral judgement. This is what law students, and those who will eventually employ them, want. Access to justice is not on the agenda. The one-time young idealist who backpacked through Asia and dreamed of a better world becomes a tax lawyer; the youthful environmentalist who once supported the Green Party, general counsel to an auto-parts company. As Michael Gorra has written of characters in Ward Just's novel Forgetfulness, "They have discovered that a career creates its own requirements, which are often at odds with the ideals that led to the choice of that career in the first place. At their outer edges, the compromises people make become ... Lebensluge, the lie that allows one to live.
Every year an army of law school graduands disperses into society and the workplace. These new lawyers are clever and educated, ambitious and aggressive. With few exceptions, they seek to participate in what their predecessors have established, not to reform what is there. They will make their way in the world as they find it. They will adopt it ways and eschew change. They will be reluctant to turn away clients, no matter who they are and what they want. They will be helpful, not judgmental. They want to work hard and be successful (although, as I have described, some will stray). They will serve their rightful masters. Their masters do not include the poor, or even the middle class.
As the stories I have told show, a lawyer in practice, whether he is by himself or with a handful of others or in a large firm, has much to contend with. Harsh economic imperatives promote inefficient work habits and even bad behaviour (overbilling, for exampe, or other forms of cheating). There is no moral compass, for it is not the job of the lawyer to pass moral judgment. Professional mastery of legal rules, and the need to manipulate them on behalf of clients, may encourage disrespect for values that are found in the law. Almost all of it practitioners see law as a business (the judgment of the BC Court of Appeal in the Strother litigation notwithstanding).
And there is extensive psychological baggage. To quote Martin Seligman once more, "Lawyers are analytical and emotionally detached. This produces predictable emotional consequences for the legal practitioner: he or she will be depressed, anxious, and angry a lot of the time. Lawyers are also pessimistic And sometimes, as some of my stories show, a lawyer descends into what can only be called a kind of madness, exhibiting psychopathic and other deviant behaviour. None of this favours justice in the broader community.
Many new lawyers join the great Canadian law firms and stay there for many years, even for their entire careers. In these great firms, which serve the economic elite (corporations, governments, a few rich individuals), a lawyer's work is as challenging as it gets; his prestige, considerable; his income (in due course), huge. Many of these firms are very large, with multiple offices in Canada and overseas. They have enormous overheads. They are businesses. Their need and desire for profit is relentless. Abusive billing practices are common. Oversight of quality and integrity is difficult, if not impossible. The partners and associates hardly, if at all, know each other. Knowing and trusting your partner or colleague is unusual and unnecessary; firm size, geographic spread, and organizational and legal structures (such as the limited liability partnership, creating what David Cay Johnston calls "a moral hazard) ensure that this is the case. A law firm has little concern for access to justice by the man on the street. ...
I have described the often ineffective and confused treatment by regulators of lawyers gone bad. Some egregious conduct leads to disbarment; sometimes, to a token reprimand. Sometimes a disbarred lawyer is easily readmitted to legal practice (after cooling his heels for a few years) sometimes he will remain forever beyond the pale. ...
Law societies are run by lawyers, according to the world view and temperament of lawyers. It is no surprise that they have the same agenda and attitude as their members. Law societies are by nature conservative and protective of the status quo. They nourish their own and are the voice of the establishment. A law society member who is different risks severe criticism and marginalization. It is not the law societies of Canada that will change things. ...
There are no good arguments for the view that only lawyers can regulate lawyers, and many good arguments for the contrary position. Disciplinary action should be in the hands of an independent body; for a law society to investigate, prosecute, and judge violates elementary principles of justice. Above all, it is time to put the interests of the consumer at the centre of the system, making the legal system and the courts available to all. Only the government can do these things.
There will always be lawyers who go bad, no matter what the legal system. But the legal system should have no tendency to create, encourage, or permit transgressions. Those will inevitably come from the vagaries of human nature, which cannot be escaped.
Lawyers Gone Bad
Money, Sex and Madness in Canada's Legal Profession
By Philip Slayton
Published 2008 by
Penguin Group (Canada)
90 Eglinton Avenue E., Suite 700
Toronto ON M4P 2Y3
The author, Philip Slayton, studied law at Oxford University, spent a year as law clerk to Justice Wilfred Judson of Supreme Court of Canada, taught law for 13 years at McGill University and University of Western Ontario (where he was Law Dean) then in 1983 joined the Toronto Bay Street firm of Blake, Cassels & Graydon where he practised corporate law.
BC Mary comment: Slayton's excellent book provides detailed case studies and bushels of notes ... all Canadian. I wrote to him hoping he would look into the BC Rail affair. He replied, saying "Quite a story" but that he's already working on two new books. I would love to know how he would handle the theme of The Government v. The People, wouldn't you? Or ... The People v. Government.
Visit Philip Slayton on FaceBook and Twitter.
Mighty Judgment will be published in April.
Lawyers Gone Bad is now available as an ebook.
Would-be lawyer rejected by Ontario’s Law Society for poor character
Ryan Manilla leaves the Law Society of Upper Canada with his lawyer on March 4 after a hearing in which Manilla appealed a decision that he wasn't of good character and therefore could not practise law. The appeal was rejected.
Visit the Toronto Star story to see the photo of the Ryan Manilla and his lawyer leaving the Law Society of Upper Canada.
Toronto Star - April 5, 2011
Ryan Manilla was a terrible neighbor, but does that mean he can’t be a good lawyer?
The 29-year-old did exceptionally well in high school. He was at the top of his class at Osgoode Hall Law School. He won summer jobs at Canada’s top legal firms.
But in September, Manilla’s application to become a lawyer was rejected by the Law Society of Upper Canada when he failed to meet its “good character” requirement because of his aggressive and bizarre conduct as a member of his condo’s board.
Manilla’s appeal of the decision was dismissed by a Law Society panel in late March.
Canada’s Law Society Act requires that licences to practise law only be granted to people with “good character.” It doesn’t define what that is.
In September 2008, Manilla was condo board president and became embattled with its members over proposed fee increases at the Vaughan building.
According to the law society ruling, Manilla sent threatening emails to the other board members and condo management stating they “run the risk of being shot by the residents in the building.”
He was booted out as president, but continued to fight against the fee hikes, once boasting that he enjoyed making the other members “squirm.”
Manilla didn’t stop there. He reportedly used unprintable language in reference to another board member’s wife and daughter during a confrontation, and made insulting remarks about Russian people who lived in the building.
Manilla then forged a letter from a woman claiming to be a private investigator and a non-resident owner of one the units in the building. (He used the name of an actual owner, but flipped her first and last name.) In the letter, which he circulated through the building, Manilla claimed other board members were receiving kickbacks from the company that built the condo.
Under weighty speculation, the board members were subsequently voted out by the other owners. Manilla was crowned president of the new board.
In March, 2009, Manilla was charged with criminal harassment. Those charges were dropped after he agreed to sell his condo, among other stipulations.
He apologized to the four board members, and gave Sick Kids Hospital a $250 donation in each of their names. He went to anger management classes and received psychotherapy.
But it was too little, too late.
In its ruling at Manilla’s “good character hearing,” a Law Society committee said he “pulled the wool” over the eyes of the anger management agency that wrote him a reference letter.
The committee cited Manilla’s forged letter as the most serious offence, calling it “clear character assassination” and noted he didn’t come clean about writing it until five days before the hearing. He was rejected on the basis of his “serious misconduct” that betrayed his character flaws.
The Law Society, which regulates Ontario lawyers, requires applicants to complete 14 questions and offer two references from the legal profession to determine they are of “good character.”
They include questions on everything from being fired from a job to being subject of a criminal trial. The Law Society notes it may investigate or verify any information supplied. Its last question is rather open-ended:
“Are there events, circumstances or conditions, other than those mentioned above, that are potentially relevant to your ability to practise law?”
The Law Society was unable to comment Monday on whether Manilla is out of the profession forever, or if he can eventually reapply.
The Star could not reach Manilla for comment.
Is there anything this government won't lie about?