legal profession – Double Aspect

Learn Your Craft!

Justice Stratas shares his thoughts on succeeding in law school and beyond on the new episode of the Pod

Last month, co-blogger Mark Mancini launched an experiment in podcasting. We are back with a second episode, for which we have had the honour and the pleasure of speaking with Justice David Stratas, of the Federal Court of Appeal. With the new school year starting, we thought we would ask Justice Stratas for his thoughts on succeeding in law school and in the legal profession, with a particular emphasis on advice for first-year students. We are very grateful to him for accepting the invitation!

I am happy to report that the sound is rather better than last time, though no doubt we still have much to learn. Still, we think this should be an engaging and useful episode. You can listen to our conversation right here:

It is also available on Spotify and Google Podcasts. We also hope that you will share it with any law students ― especially first-year students ― you happen to know, or be teaching.

And, for further reading: Justice Stratas writing tips; and also, Mark’s post on “The First Year of Law School“.

One Does Not Simply

Ensuring access to justice isn’t simply a matter of the legal profession’s being more open to “experiments”

Justice Abella has published an op-ed (paywalled) in The Globe and Mail ― yes, another one. It’s being widely shared, with apparent approval, on Canadian law Twitter ― which may or may not reflect the sentiment of the profession more broadly. Justice Abella argues, in a nutshell, that the justice system is hidebound and in dire need of root-and-branch reform to be able to actually provide justice to ordinary litigants. Wanting to improve access to justice is, to be sure, a fine sentiment. However, Justice Abella’s analysis of the system’s problems ― which are real enough ― is remarkably simplistic, and she proposes no solution at all.

Justice Abella writes that the “public [has] been mad for a long, long time” about access to justice and, apparently taking the mad public’s side, wonders “why we still resolve civil disputes the way we did more than a century ago”. Her evidence for the claim that we do so is that in 1906 “Roscoe Pound criticized the civil justice system’s trials for being overly fixated on procedure, overly adversarial, too expensive, too long and too out of date”, and a claim that a an early 20th-century barrister “could, with a few hours of coaching, feel perfectly at home in today’s courtrooms. Can we say that about any other profession?”

Justice Abella attributes this situation to the fact that “the legal system … resist[s] experimenting with justice in order to find better ways to deliver it?” and keeps doing things the way it does for no other reason than “Because we’ve always done it this way”. Comprehensive reform ― not “incremental change” but “a whole new way to deliver justice to ordinary people with ordinary disputes and ordinary bank accounts” ― is necessary.

I have no courtroom experience, let alone ability to judge the public’s mood with any accuracy, so I cannot speak to the accuracy, if any, of what Justice Abella’s description of the justice system’s current state and of the popular reaction to it. I will reiterate that I do not believe that Supreme Court judges can, or should try to, channel “social values” or otherwise make themselves the purported spokespersons of the people. That’s not their job, and a good thing too, because they are supremely unqualified for it. But be that as it may, even if we grant, for argument’s sake, that Justice Abella’s descriptive claims are accurate, it is still the case that her analysis is devoid of all perspective. It considers the issue neither across time, nor in comparison with the state of affairs elsewhere in society. The resulting take is insular and unsound.

A historically informed view of the problem that Justice Abella discusses would have to acknowledge that it is very, very old. I’m no great historian, sadly, but as best I can tell access to justice and the remoteness of the courts from the common people were an issue going at least as far back as the English revolution in the 17th century. The expense and the incomprehensibility of legal proceedigns exercised Jeremy Bentham at the turn of the 19th. And then, as Justice Abella herself observes, they frustrated Roscoe pount in the early 20th, and any number of people in the 21st. People put forward various solutions too ― the puritans tried to establish courts outside London; Bentham was convinced that writing down the common law “into one great book (it need not be a very great one)” that would be “read through in churches, and put into boys’ hands, and made into exercises when they are at school” would do the trick. None of that worked.

One might of course conclude from this that the legal profession and the judiciary are, if anything, even worse than Justice Abella imagines. But isn’t the more plausible explanation for the persistence of access to justice problems that they are genuinely very difficult to solve, rather than that they are caused by laziness and obduracy? I will return to this issue shortly.

Before I do so, though, let me note that it’s simply not true that the rest of society has evolved beyond all recognition while the law has allegedly stood still. The work of academics and (perhaps even more so school teachers) looks much as it did not only 100, but 800 years ago. So does that of people in any number of other trades, if we put to one side the accumulation of technical knowledge, in the same way as Justice Abella puts to one side the evolution of substantive law. Even in medicine, to which Justice Abella appeals as an example of a forward-looking profession unafraid to “experiment with lives”, things are more complicated than she allows. The work of many specialist doctors has no doubt by transformed by all manner of gadgets. But what about that of general practitioners? Is it really so unrecognizable from a century ago?

The thing is, this is not because GPs, or chefs, or professors, are ― like lawyers ― hidebound and smug. Justice Abella simply implies that new and radically different is better, it is not clear why that should be. New can be better, but it need not be. If things are the way they are for some important reason, then ― so long as the reason is still present ― it is wise to keep them as they are, unless some weightier reason impels change.

And this brings me back to the question of why access to justice problems are genuinely difficult to solve. There is, in fact, a good ― although perhaps not a decisive ― reason for having those procedures whose existence so annoys Justice Abella. They are widely thought to promote more accurate decision-making, and they support the human dignity of the people who find themselves in front of the courts by giving them a chance to be heard and, no less importantly, to test and challenge the case that is being made against them. It is for these reasons that some or all of these procedures are required when people’s rights and obligations are being determined not by conventional courts, but by administrative decision-makers. Go back to 1906, and these tribunals often operated very differently, with no procedural safeguards to speak of. Yet this aroused criticism, and the critics prevailed; change came, partly through legislation and partly through decisions of the courts, widely celebrated now although they would have been anathema to the champions of experimentation and efficiency of the Progressive era.

In my last post I wrote about the trade-offs involved in designing administrative procedures. If procedure is good, there can be too much of a good thing. Additional procedural safeguards eventually yield little improvement in terms of more accurate or even more dignity-respecting adjudication, yet their cost, both to the taxpayer and to the parties, can become intolerable. Gerard Kennedy (whom I thank for his kind words about my post) has suggested that Justice Abella made just this point about trade-offs. But, respectfully, that’s not how I read her op-ed. There is no acknowledgment of trade-offs in Justice Abella’s argument; she does not recognize that there are reasons, beyond simple resistance to change and unwillingness to “experiment”, for the system being as it is. She blames the legal profession’s conservatism, and has no time for other considerations.

All that is not to say that there need be no reforms. My own preference, expressed since the earliest days of this blog, is for deregulating the legal profession. Justice Abella, I rather suspect, might not be on board with this particular experiment, but I would love to see it. Lack of competition is bound to make the legal system less innovative than it might be, so bringing about more of it is likely to ameliorate the problems Justice Abella is concerned about. But we should not delude ourselves about how much this, or any other, reform might accomplish. For one thing, so long as the state exists, the court system, if not the legal profession, is bound to remain a monopoly. Sure, alternative dispute resolution exists, but it is not suitable for resolving certain kinds of disputes. And, beyond that, those trade-offs, and the need for a system that provides substantive justice and procedural fairness, and not only expediency, is not going away.

Put to one side the question of whether a person who is sitting at the apex of the legal system, and has been for 16 years, who has been a judge for almost 45, who has accepted innumerable plaudits from the legal profession and academy, should really be criticizing the system as if she is not part of it. Leave it to moral philosophers. But we need not wait for their judgment to say that Justice Abella’s argument is driven by the conceit that solving the problems she identifies would be easy if only the system were less stuck in the past and more willing to try new approaches. The fact that she does not even begin to tell us what these approaches might be ― that she proposes no new idea, even one as daft as Bentham’s public readings of the not-very-great law book ― should be a hint: things aren’t as simple as she would like us to think.

There is a word for this tactic of setting up an alleged conflict of “the public” or “the people” against some obstructionist, and probably self-interested, elites standing in the way of change; of denying the difficult trade-offs that change would require; of claiming that a transformation of society, such that trade-offs can be dispensed with altogether, is around the corner if only the resolute leaders in communion with the enlightened people were in change. It’s a word that one would not have associated with Justice Abella, but one has to, given that this rhetoric is precisely what she deploys in this op-ed. The word is, of course, “populism”. In the previous op-ed, linked to at the beginning of my post, Justice Abella, denounced populism, arguing that “[m]any countries around the world … have made Faustian bargains, selling their democratic souls in exchange for populist approval.” This was, she wrote, “unconscionable.” But that was then, I suppose, and this is now.

Just as she does with the Rule of Law, alternatively disparaging and extolling it as suits the circumstances or the taste of her audience, Justice Abella can castigate populism or engage in it. One might think this is, indeed, unconscionable. But, perhaps, things are not so bad. As I wrote in commenting on that previous op-ed,

Justice Abella thinks that she is some sort of great and wise philosopher, and as such is qualified to dispense advice, both judicially and extra-judicially, on how people should organize their affairs and even what they should believe in. Her ladyship is labouring under a sad misapprehension in this regard. She is no great thinker. She has no answer to obvious questions that her arguments raise, and no justification for her extravagant assertions of authority.

She might simply not understand what she is doing. I’m not sure about this, but she really might. Either way, July 1, 2021, when she must at last retire from the Supreme Court, cannot come soon enough.

Deregulate All the Lawyers

Why deregulation is the solution to the conflict around the “Statement of Principles” (in addition to being good for access to justice)

There was, we can now confidently say, a great deal of rancour in the Ontario legal profession about the Law Society’s attempt to force its members to abide by a “Statement of Principles” acknowledging a non-existent “obligation to promote equality, diversity and inclusion”. This rancour having let to the election last month of slate of benchers pledged to repeal the “Statement of Principles” requirement, there is now a great deal of rancour among the profession’s social justice warrior faction. The #BencherElection2019 hashtag on Twitter leads one to a collection of laments about the profession’s past, present, and future. Of course, the election result suggests that the wailing chorus represents only a limited section of the profession, but it is certainly not a negligible one.

Being a vocal opponent of the “Statement of Principles” requirement, I was, of course, delighted by the election’s outcome. But I too am not especially optimistic about the future of the legal profession as it is currently constituted. I don’t know whether the StopSOP momentum can be kept up in 2023, and in 2027, and in 2031… Perhaps the social justice brigades will have moved on, and the whole thing will no longer be an issue. But I would not bet on it just yet. It’s certainly not inconceivable that a People’s Front of Ontario Lawyers, or an Ontario Lawyers’ People’s Front, will come to run the Law Society at some point. And judging by their role models, when they do so, they will not be taking prisoners.

Fortunately, there is a way to avoid this outcome and, more broadly, the transformation of Law Society elections into a battleground of total culture war, in which liberty is supposedly pitted against equality, and the losers, whoever they may be, fear for the integrity of their souls. It is deregulation. The deregulation of the legal profession is a very good idea on other grounds too, notably for the sake of access to justice, as Ian Mulgrew recently pointed out in the Vancouver Sun. (One particular sub-genre of the post-Bencher election lament consistent of the supporters of the “Statement of Principles” saying that lawyers should worry about access to justice instead of opposing the Law Society’s impositions. I think this is a false dichotomy, but I hope that those who are concerned about access to justice, whatever they might think about the “Statement of Principles”, will join my appeal for deregulation!) There is no reason, really, why the law needs to operate like a medieval guild. But this is not a new idea; just one that needs to be constantly repeated. The possibility of using deregulation as a tension-defusing mechanism is more novel. Still, the case is a rather obvious one.

The reason why the “Statement of Principles” provoked such fierce resistance is that those of us who refuse to submit to state-sponsored imposition of a mandatory ideology were put before a stark choice: trample, in Vladimir Mayakovsky’s words, on the throat of our own song, or lose the right to practice law. The reason why the proponents of the “Statement of Principles” are so aghast at its opponents’ electoral success is that they think it speaks so very poorly of a profession ― and a guild ― to which they too belong, and about which they care (however misguidedly they might do so, by my lights). We are, apparently, stuck together ― at least until the Ontario Lawyers’ People’s Front, or the People’s Front of Ontario Lawyers, can liberate the profession from dastardly dissidents. And we are bound to make each other miserable.

But not if the legal profession were deregulated. There is more than one way of doing this. Ideally, the restrictions on who can provide legal services, and even the lawyer licensing process, would be scrapped. (It would make sense, of course, to continue requiring anyone providing such services to carry insurance appropriate to the nature of the service the person is providing.) But as a second-best alternative, what needs to go is the monopoly of the existing Law Society of Ontario. Let any group of lawyers, subject perhaps to a moderate minimum membership requirement, start up its own law society, with its own licensing process, and its own membership rules. If Lawyers for Social Justice want to require their members to have a statement of principles abjuring whiteness in the name of the gestational parent, the daughter, and the holy ghost, amen to that. If the Cult of Hayek wants to demand a statement of principles demonstrating personal valuing of free markets and the Rule of Law, amen to that too. And if Lawyers for Mere Professional Competence don’t want to impose any such rules, amen to that again, and where can I sign up?

The point is that, in the absence of a monopoly ― if there isn’t one body whose decisions, whether made as a result of (low-turnout) elections or on the basis of revolutionary racial consciousness, have the ability to allow or deny people the ability to make a living ― we don’t have to constantly fight one another about the direction of the profession as a whole. We can and will continue to disagree, but the stakes of the disagreement will be lower. At most, we might be fighting for greater memberships in our respective clubs ― and we will be doing that by trying to persuade people to join us, rather than our opponents, instead of peremptory demands that they adopt our fatal conceits, or else.

Now, despite my professed equanimity, am I really rigging the game in favour of Cult of Hayek here? Why should the supporters of the “Statement of Principles” endorse deregulation? Well, for one thing, because they now know that they are not as popular as they thought. They might make a comeback in four years, but then again, they might not. Deregulation would make it possible for them to organize their affairs on their preferred principles, regardless of their lack of popularity among the broader profession. They could even be the shining light to which more and more lawyers flock, leaving us dinosaurs on the ash heap of history. And even the proponents of the “Statement of Principles” they do come back, it will be over the objections of a sizable part of the profession, and not just the measly 3% who, we are told, refused to tick the “Statement of Principles” box on our annual reports. Instead of advancing their agenda, they will be fighting to eradicate dissent, much more confident now than it was before the last election. And while some of them are aspiring totalitarians who would be quite happy to kick people out of the profession for non-conformity, I do believe that more than a few will blink, especially if there is a lot of kicking to be done. They should conclude that they have better things to do, and get on with the building of social justice in one part of the legal profession.

Of course, right now, it is the opponents of the “Statement of Principles” who will speak with the strongest voice in the affairs of the Law Society of Ontario. Their first order of business, I hope, will be to do what they were elected to do: repeal the state’s imposition on our consciences. But I also hope that they will not stop there. They will need to ensure that such impositions are impossible in the future. But also, that the legal profession in Ontario does not become consumed with the culture war into which it has been plunged. I call on all the newly elected Benchers, but especially on those elected under the StopSOP banner, to support deregulation, for the sake of the legal profession, as well as of access to justice. And I hope that other lawyers, wherever they might stand on the cultural issues du jour, will join this call.

Stranger Things: A Defense of Dunsmuir

Did Dunsmuir actually do some good ― at least when it comes to judicial review of law society decisions?

Alice Woolley, University of Calgary

I love criticizing Dunsmuir v New Brunswick. Who doesn’t? The majority judgment purports to simplify the identification of the standard of review, but sets out a test with the potential to bog a court down (precedent + the “standard of review analysis”). It suggests reasonableness as a deferential standard, yet invites courts to look not just at an administrative decision-maker’s reasons, but also at the outcome it reaches – an apparent invitation to a court to assess the substance of a case, instead of focusing on the administrative decision-maker’s analysis. Indeed, in Dunsmuir itself the majority neither simplified its own identification of the standard of review nor genuinely deferred to what the labour arbitrator in that case had decided (as David Mullan pointed out at the time). And of course perhaps the most telling criticism arises from the case’s failure to accomplish what one would have thought was its core mandate: allowing the Supreme Court to move on from its preoccupation with, and disagreement about, what is a ultimately a secondary question in any administrative law case. Standard of review is what the Supreme Court can’t quit. As recently as 2016 the Court split 5-4 on the appropriate standard of review in Edmonton (East) Capilano Shopping Centres Ltd.. And even in a straightforward case, the Court can still spill a remarkable amount of ink identifying the standard of review (see, e.g., Green v Law Society of Manitoba (2017)).

It thus saddens me to concede that this blog does not criticize Dunsmuir. It does not even offer praise only as cover for a nasty zinger or devastating critique. It instead reinforces the empirical studies by Gerald Heckman, Robert Danay and others (summarized by Paul Daly here) to suggest that, on the whole, the effect of Dunsmuir on judicial review of administrative decisions has been more positive than negative.

My contribution to the empirical conversation was to review Court of Appeal and Supreme Court decisions reported on CanLII involving judicial review of law society decisions (mostly through statutory rights of appeal). I reviewed 76 cases with “law /1 society” in the title and “standard /2 review” in the text, identifying the 59 decisions involving judicial review (the remaining cases were disputes to which the law society was a party). Of those, 40 cases were decided after Dunsmuir, and 19 before. I chose law society decisions because I can read those decisions and understand the issues quickly, which allows assessment of, for example, whether the law society acted badly such that the court’s interference was understandable, or whether the court was really just substituting its judgment for the law society’s. I analyzed the cases on the following grounds:

Did the decision uphold or reverse the law society?
Was the decision able to identify standard of review in five paragraphs or less?
Was the standard identified reasonableness or correctness?
Was the Court’s judgment analytically weird (for example, the Adams v LSA (2000) where the Alberta Court of Appeal applied the “error of principle or… unreasonable or demonstrably wrong” standard of review (and concluded that the decision was both “correct” and not “manifestly unreasonable”))
Did the court in fact defer taking into account both the analytical methodology (i.e., focusing on the reasons of the law society rather than on the court’s own analysis of the issue in the case) and the grounds supporting the court’s interference with the law society’s decision?

My analysis suggests little difference between how willing courts are to uphold law society decisions before and after Dunsmuir. In both time periods courts upheld the law society decision more than 75% of the time (75% post-Dunsmuir; 79% pre-Dunsmuir). Nor are judges notably more willing to use reasonableness review after Dunsmuir than they were before, at least on some of the issues raised by a case (84% pre-Dunsmuir; 90% post-Dunsmuir, including two dissenting judgments).

More significant differences arise with respect to how often the court is willing to use correctness, the length of its analysis in identifying the standard of review, and the likelihood of an odd judgment. In the pre-Dunsmuir cases the courts used correctness for at least part of the decision regularly – in 7 of the 19 cases (37%) correctness was employed in whole or in part. Conversely, in only 2 of the 40 post-Dunsmuir decisions was correctness used (5%), with one additional dissenting judgment using correctness (bringing the total to 7%).

Similarly, prior to Dunsmuir, courts regularly devoted a considerable amount of their decisions to identifying the standard of review. In the pre-Dunsmuir cases 32% of judgments spent more than 5 paragraphs identifying the standard of review, whereas subsequent to Dunsmuir only 12% did. In many of the post-Dunsmuir cases the court identifies the standard of review in a single paragraph.

Further, in almost all of the post-Dunsmuir cases the standard of review used by the court recognizably conformed to the Supreme Court’s jurisprudence. In one post-Dunsmuir case, DeMaria v LSS (2015) the Saskatchewan Court of Appeal referenced the idea of a court needing a “palpable and overriding error” for reviewing a tribunal’s findings of fact, relying on Justice Deschamps’ concurring judgment in Dunsmuir, but the Court connected that concept to the idea of reasonableness, which seems defensible. In another British Columbia decision, Mohan v LSBC (2013), the Court did not identify the standard of review, but appeared to review for correctness a Law Society Review Panel’s assessment of a Hearing Panel decision, in circumstances where the appropriateness of a correctness standard is not obvious (the issue before the Court was the Review Panel’s assessment of the Hearing Panel’s findings of fact). The Court’s failure in that case to engage at all with its own standard of review is unusual. Mohan is the one post-Dunsmuir law society decision where, to my mind, the Court dropped the ball entirely on the standard of review analysis.

In the pre-Dunsmuir cases courts also mostly seemed to grasp the basic concepts that govern standard of review (correctness, reasonableness and (at the time) patent unreasonableness) but in 3 of the 19 judgments the court’s analysis seemed odd or off-base, which is a much higher percentage (16%) than the 2.5% (1/40) for the post-Dunsmuir decisions. In its 2000 judgment in Adams, referenced earlier, the Alberta Court of Appeal treated an error of principle, unreasonableness and being demonstrably wrong as a singular standard of review, and later upheld the law society’s decision on the basis that it was both correct and manifestly reasonable. The Court did not obviously appreciate the basic ideas of standard of review and judicial deference, or turn its mind to the level of deference it needed to exercise. In a 1999 decision, Phillon v LSA, the Alberta Court of Appeal did not identify the standard of review explicitly but upheld the law society in part “given the standard of review” – implying, I think, a reasonableness standard. Yet the Court also overturned part of the law society decision on the basis that the law society had sanctioned a lawyer using guidelines not published until after the hearing. For that aspect of the decision the Court did not identify the standard of review it was using. That standard on that part of the decision appears to have been correctness but the court never says so. In 1993 the British Columbia Court of Appeal in McOuat v LSBC suggested that courts may only interfere with administrative decisions that fall within the decision-maker’s jurisdiction where the decision-maker has “abused its discretion”, which seems to adopt the pre-CUPE idea of radically different levels of deference based on the administrative decision-maker’s jurisdiction, rather than a post-CUPE concept of judicial review.

To my mind this comparison speaks in Dunsmuir’s favour. Some of these effects almost certainly arise from more than that decision – it is likely that less odd judgments arise post-Dunsmuir because of the Supreme Court’s repeated reiteration of the concepts of standard of review, not Dunsmuir on its own. A judge has to be pretty out of it nowadays not to know that correctness and reasonableness are the core concepts of standard of review, and to miss the need to identify the standard of review when considering an administrative decision. Nonetheless, the reduction in odd judgments is a good thing, and Dunsmuir deserves at least some of the credit for it. Further, the increased simplicity of identifying the standard of review is great. In almost all law society cases reasonableness should be the standard – so why belabor the identification of it? That simplification was something Dunsmuir explicitly sought to accomplish, and these cases suggest that it has done so. Dunsmuir also does not seem to have made courts any more willing to interfere in law society decision-making – courts, at least when it comes to law societies, are respectful of and deferential to administrative authority, and Dunsmuir has made them no less so.

Indeed, perhaps the thing that strikes me most about reading these judgments is how sound the courts’ instincts are in reviewing law society decisions. That is not to say that I agree with the result in every case here. In several cases I disagree strongly with the law society’s decision (e.g., Groia v LSUC), so I’m unlikely to agree with the outcome of the court decision that upholds it. But disagreement with the result does not suggest that the Court was wrong to defer. My observation is that, generally speaking, these cases show courts understanding what their role ought to be, and fulfilling it.

Generally speaking, courts focus on law society reasons, not the substantive issue in the case. Of the 42 post-Dunsmuir judgments, I assessed 75% as focused on the law society’s reasons and analysis, even where the court overturned that decision. In those cases courts did not seem interested in making their own decision and then weighing the law society’s against it. They looked instead at what the law society did, and whether it could be defended as reasonable. And where courts were not reasons-focused, that lack of focus was often understandable. In Trinity Western University v LSBC (2016), for example, the process and substance of the Law Society’s decision was fundamentally flawed such that the Court’s independent assessment of the legal and constitutional issues was understandable (even inevitable). Similarly, in Merchant v LSS (2014), the Court engaged in a detailed review of the issues, but it did so in significant part because of the intensity and detail of the arguments made by the lawyer challenging the decision – there was really no way for the Court to both defer and respond to the lawyer’s case. Certainly sometimes the courts focused more on the substance of the issue before the court than on the law society’s reasoning. In Law Society of Newfoundland and Labrador v Regular (2011) for example, while I am persuaded by the Court’s reasoning, I do not think it acted deferentially in substituting its reasoning about conflicts of interest for the Law Society’s, especially given it reached the same result in the end. Overall, however, the cases did not bear out the concern that Dunsmuir encourages courts to focus on the justifiability of the outcome rather than on the administrative decision-maker’s reasons.

Further, and this is true of both pre- and post-Dunsmuir cases, most of the time I think courts interfered with law society decisions to about the right extent, substantively speaking. They did not tend to second-guess law society decisions about whether a lawyer has committed misconduct, or about the appropriateness of the penalty. They recognized that the law society was in the best position to decide those matters, and they let the law society’s decision and assessment stand. At the same time, however, courts appropriately checked law society over-reach. The Courts overturned decisions where the law society:

Failed to take into account or even consider a lawyer’s exculpatory explanation for misconduct in assessing the appropriate penalty, or failed to consider joint submissions from the law society and the lawyer on penalty (Guttman v LSM (2010); Hamilton v LSBC (2006); McLean v LSS (2012); Rault v LSS (2009));
Improperly assessed a delay as prejudicial for only one charge, even though the witness now unavailable was material to both charges (Stinchcombe v LSA (2002));
Refused to compensate a client for funds paid to a lawyer on the basis that a lawyer who was suspended did not receive money in his capacity as a “lawyer” (Singh v LSA (2000));
Applied sentencing guidelines that had not been in force at the time of the lawyer’s hearing (Phillon v LSA (1999));
Had a review panel which did not apply the level of deference review panels of that law society are supposed to apply (LSUC v Abbott (2017); Vlug v LSBC (2017);
Did not try to make a correct decision, but only tried to make a reasonable one (TWU v LSBC (2016) – although the Court also took the position that the law society denying accreditation to TWU would be an unreasonable violation of s. 2(a), which is more contestable);
Had a review panel which incorrectly stated that a hearing panel had not made a credibility assessment of a witness, and then proceeded to assess the witness’s credibility without having heard the witness (Mohan v LSBC (2013));
Imposed a condition that a lawyer provide a psychological assessment of her fitness to practice, when her competence was not at issue (Ritchot v LSM (2010));
Charged the lawyer with having committed an act intentionally, but then convicted the lawyer on the basis of negligence (Merchant v LSS (2009)).

Of course one does have to remember that it is the court who gets to tell the story in cases like this, with the result that it is perhaps unsurprising that the court tends to look like it is doing the job well. At the same time, however, I chose law society decisions because I am somewhat less likely to be fooled by persuasive judicial writing in this area than I would be in, say, environmental law, where I know nothing. And based on such expertise as I have, it seems to me that the courts mostly have it right in terms of their willingness to interfere with law society decisions. This is the case even where I do not agree with the underlying law society decision such as Histed v LSM (2006) or Groia v LSUC (2016) (with the caveat that the dissent in Groia makes a persuasive case for correctness review and overturning the Law Society’s decision). But the point is that whether a law society reached the same decision I would have on the evidence is not a basis for judicial review, and the courts understand that.

What broader insights follow from this analysis? None, except cautiously and with significant caveats. Law societies have features that set them apart from other administrative decision-makers: the decisions reviewed are quasi-adjudicative; they have extensive procedural protections for the lawyer; many (most?) lawyers are represented by counsel at the law society hearing; most law societies have statutory rights of appeal that take them to appellate courts for judicial review in the first instance, which increases the likelihood of informed judges; the decision-makers are mainly lawyers who are less likely to make bad legal errors; their policy choices rarely come before the court on judicial review. These factors may enhance the likelihood that a court will do judicial review of law society decisions better than they do judicial review generally. On the other hand, courts have concurrent jurisdiction over lawyer conduct through the inherent jurisdiction of the court, and can reasonably be viewed as equally expert to law societies on what constitutes appropriate lawyer conduct. That could have made the court more willing to interfere – no matter how expert the law society, the court would see itself as just as expert. Certainly it was not obvious to me before I read these cases that I was going to find what I did – I expected courts to be much more willing to interfere in law society decisions than they turned out to be.

With that caution and those caveats in mind, I would offer up two tentative conclusions from this review. One is that, as noted before, the effect of Dunsmuir is largely positive or, at worst, not negative. The other, however, is to suggest that the Supreme Court might want to calm down on its standard of review jurisprudence. These cases suggest that appellate courts understand what they are supposed to be doing in judicial review, and they are doing it. Constant tinkering with judicial review by the Supreme Court does not seem to be necessary, and risks unsettling the good work the lower courts, at least in these cases, are doing.

“Intolerant and Illiberal”

The BC Court of Appeal is right to insist on tolerance for an intolerant institution

In a decision issued yesterday, Trinity Western University v. The Law Society of British Columbia, 2016 BCCA 423, the British Columbia Court of Appeal held that the Law Society acted unreasonably when its benchers, following its members, voted “not to approve” the University’s proposed law school, preventing its graduates from practicing in the province and causing it to lose the government’s permission to grant recognized degrees. The unanimous decision “by the court” is not always straightforward to follow in its administrative law analysis, which is surely at least in part the consequence of the convoluted approach that the Supreme Court has taken to analyzing Charter issues when they arise in administrative decision-making. But on the constitutional issue of balancing the allegedly competing considerations of religious liberty and equality rights, the Court gets it quite right when it concludes that “[t]his case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.” [193] Let me explain.

Trinity Western requires its student to sign a “Covenant” which, among other things, seeks to prevent them from having sex outside marriage, and defines marriage as strictly heterosexual. Whether or not this is intended to discriminate against LGBTQ students, it obviously does discriminate. Although there apparently are some such students at Trinity Western, the Covenant is obviously a greater burden on most of them (except those who do not view celibacy as a burden) than on most heterosexual students (though it’s worth noting that the Covenant does restrict the liberty of such students too, and in a way that would surely be unconstitutional if this restriction were imposed by the state). A great many people, within and outside the legal profession, and within and outside the LGBTQ community, are offended by the Covenant’s existence, and have campaigned for Trinity Western’s proposed law school not to be recognized, preventing its graduates from entering the profession. For some, this seems to be a means of putting pressure on Trinity Western to repent its discriminatory sins. But Trinity Western has made it quite clear that, as befits religious fanatics, they will do no such thing. There will be a Trinity Western Law School with the Covenant, or there will not be one at all. There is no tertium quid.

Trinity Western argues that denial of accreditation to its law school by the BC Law Society infringes its religious liberty. The Law Society claims that it has balanced religious liberty and the equality rights of the LGBTQ people, which are infringed both by being put to the choice of either refraining from going to Trinity Western or going there and living in the closet for the duration of their studies. Moreover, the Law Society says that it should not put itself in the position of effectively endorsing the Covenant by accrediting the law school despite the Covenant’s existence. As the Court’s judgment shows, the Law Society did no such thing. Although its benchers were aware of these various concerns, they punted on the decision whether to accredit Trinity Western or not, and let the Society’s members effectively make that decision through a referendum, authorizing it through a resolution that made no mention of the religious liberty side of the ledger.

How should these concerns be balanced, then? More to the point, are these concerns even real? Trinity Western’s clearly are. Its ability to exist as a religious institution is denied when the government (or its delegate the Law Society) denies it an accreditation, that would otherwise be available to it, on the basis of its religious beliefs. Sure, Trinity Western doesn’t have to have a law school. But if the only reason the state will not let it have one is its religious belief, then the state is in default of its duty of religious neutrality, which applies as much to prevent the state from singling out a set of beliefs for a particular burden as to prevent it singling out a set of beliefs for special support (the proposition upheld by the Supreme Court in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3).

The Law Society’s constitutional concerns, by contrast, are simply made up. The moral concerns are real enough ― Trinity Western’s Covenant is profoundly illiberal (though nobody seems actually concerned about that) and homophobic in effect if not in intent. But that is not enough. As the committee of the Federation of Law Societies that considered Trinity Western’s proposed law school pointed out,

approval of the [Trinity Western] law school would not result in any fewer choices for LGBT students than they have currently. Indeed, an overall increase in law school places in Canada seems certain to expand the choices for all students. [Quoted at 174]

The Court stated that “[t]hese findings are entitled to deference”, which may or may not be right. But quite apart from any deference, this statement is self-evidently correct. Even assuming (plausibly even if not entirely accurately) that no LGBTQ student would want to attend Trinity Western, the number of law schools open to such students does not change whether or not Trinity Western’s is allowed to operate. And the idea that Trinity Western might be “persuaded” to drop its homophobia is, as already noted, patently wrong. As the Court concludes, “it is incontrovertible that refusing to recognize [Trinity Western] will not enhance accessibility” [175] of legal education for LGBTQ people.

The Court is also right to reject “the submission that the approval of [Trinity Western’s] law school would amount to endorsing discrimination against LGBTQ individuals”. [183] As it observes, all manner of people and organizations seek and obtain regulatory approval for all sorts of projects and undertakings. It cannot be the case that such approvals are always synonymous with endorsement of these people’s and organizations’ beliefs. If it were otherwise, and the state had to refrain from communicating such endorsements, “no religious faculty of any kind could be approved”. [184] Arguably, no political activity should be either, since the state ought (morally and arguably constitutionally) be politically as well as religiously neutral.

Ultimately, as the Court rightly notes, the issue here is hurt feelings ― people’s outrage at the idea of a homophobic institution being allowed to freely operate not too far from the seat of power in society. The Court’s response to this is spot on:

While there is no doubt that the Covenant’s refusal to accept LGBTQ expressions of sexuality is deeply offensive and hurtful to the LGBTQ community, and we do not in any way wish to minimize that effect, there is no Charter or other legal right to be free from views that offend and contradict an individual’s strongly held beliefs … Disagreement and discomfort with the views of others is unavoidable in a free and democratic society. [188]

I would add just a couple of observations. The first is that the whole Trinity Western imbroglio, which is of course not over as the case is likely to be headed for the Supreme Court, is one illustration of the perniciousness of the regulation of legal services in Canada (and elsewhere). The existence of law societies, which are at once state-sanctioned cartels and permanently-captured regulators, is a problem. The law societies that denied Trinity Western its accreditation, especially those that did it on the basis of referenda, put their members’ political agenda ahead of the public interest in having reasonably-educated (as all concede Trinity Western’s graduates will be) lawyers competing to provide legal services. That the agenda of LGBT equality is on the whole a very good one does not in any way stop this being a case of capture. If legal services were deregulated, and the law societies denied their privilege of erecting barriers to entry into the market, this would not have happened.

The second observation I wanted to make here concerns contrast between the reactions to the Trinity Western Covenant’s discriminatory effects and some other, similar, issues. One of these, which I have already referred to, is that same Covenant’s illiberalism. “No sex outside marriage” is an illiberal, near-totalitarian position. (It was one which actual totalitarians, in the Soviet Union and elsewhere, were quite keen on. They were also quite keen on homophobia, of course.) It would be so even if “marriage” were defined irrespective of gender or sexual orientation. Yet nobody, it seems, has been particularly concerned by Trinity Western’s illiberalism. Only its discrimination got people worked up.

Nor is anyone apparently concerned by other Canadian universities’ questionable approach to individual rights. I am not aware of a comprehensive Canadian resource similar to the Speech Codes Database of the Foundation for Individual Rights in Education, but consider just one example from British Columbia. UBC’s Student Code of Conduct provides that “[a]ny conduct on the part of a student that has, or might reasonably be seen to have, an adverse affect on the integrity or the proper functioning of the University … is subject to discipline under this Code”. What this means is not defined; although there follows a list of examples of what this prohibition might encompass, the Code is careful to state that they are no more than illustrations. Given the absurd vagueness of this rule, one can only conclude that due process rights are not held in very high regard at UBC; nor is freedom of speech, it would seem, considering the UBC Statement on Respectful Environment for Students, Faculty and Staff purports to proscribe such things as “gossip”. Again, these things do not seem to trouble anyone.

My point, to be clear, is not that these things are necessarily worse than, or even as bad as, the discrimination in the Trinity Western Covenant. It is only that the indignation that the Covenant has aroused seems at least somewhat selective. The law societies that have pounced on it to deny Trinity Western its accreditation are not all that concerned with individual rights. They are, mostly, concerned with one specific right, which just happens to be at the leading edge of contemporary progressivism ― for the time being, anyway (and perhaps not for much longer, as trans rights take over that position). However important that right ― and it is important ― signle-minded obsession with it does not show the law societies in a very good light as regulators in the public interest.

Be that as it may, it is a relief that five judges of the BC Court of Appeal saw this case for what it was ― an attempt by a majority, however well-meaning, to impose its views on a minority, however bigoted, to indulge its own moral preferences, however correct, rather than to defend anyone’s rights from legally cognizable injury, however slight. One can only hope that at least as many of their colleagues on the Supreme Court will see it that way too. Just as municipal functionaries in Québec should not be able to use their regulatory powers to silence a turbulent imam, Canadian law societies should not be able to use theirs to clamp down on turbulent pastors. The contrary result would be, as the Court notes, intolerant and illiberal.

Access to Justice and Political Ignorance

I will do one last post ― for now, that is, until the Supreme Court’s judgment comes out ― prompted by the British Columbia “hearing fees” case I have been blogging about. In this post, I want to step back a little, and offer some thoughts on the bigger picture of which the “hearing fees” ― a price charged by the provincial government for time in court ― fit into the broader access to justice problem.

I’m not sure if this comes across clearly in my posts on the subject, but I am quite worked up about these fees. I think that there is something very wrong about them. While I have argued that legally, they are objectionable as a violation of the constitutional principle of the Rule of Law, the strictly legal claim cannot ― and is not intended to ― capture the feeling of injustice that these fees provoke. (That is true of any legal claim, in my view ― though others, notably my brilliant NYU colleague Emily Kidd White, might disagree.) But while legal claims are best left relatively confined and technical, as a matter of political morality, it is appropriate to denounce the hearing fees not just as violations of specific constitutional rules and principles, but as an unconscionable barricade against access to justice.

They are not the only such barricade, of course. Even in jurisdictions where there are no hearing fees, litigants are required to pay fees for any number of court “services,” including the filing of a claim. The state sanctions and enforces the cartels that limit the supply and drive up the prices of legal services, otherwise known as law societies. Judging by the backlogs in the courts, there are not enough judges and/or courtrooms to handle all the cases in a timely manner, which is a basic function of the state on any liberal view, whether classical or social-democratic. (Indeed, it is a perceived need to ration court time that led B.C. to impose escalating “hearing fees” intended somehow to deter long trials.) And then, of course, there is the issue of funding for legal aid.

What is really depressing about all this is that these problems are almost entirely absent from the political conversation, or indeed the broader public debate. Lawyers (and judges) are the only ones to talk about at least some of them. They are self-interested, of course (lawyers especially), and although this does not make them wrong, it does mean that some problems created by their self-interest, notably the cartelization of legal services, are practically never discussed. Politicians, who are ultimately responsible for decisions about how legal services are regulated and how the justice system is funded do not discuss these issues.

This is, I suppose, just one more manifestation of the pervasive political ignorance that affects policy-making of all sorts. People are just not knowledgeable about politics, political institutions, or issues of public policy. Yet one would think that, unlike some of the more abstract problems (say that of public debt and the appropriate level of government spending) which might not affect anyone in particular (important though they are important for us collectively) and so attract few people’s attention, the problems of access to justice not only impact real people every single day, but may indeed affect anyone at some point in one’s life, whether personal (say because of a divorce) or business. Having to wait, or not being able to afford, to take one’s case to court might not be as physically painful as waiting for a surgery, but it must be wrenching all the same. Why doesn’t the suffering of people who are being denied access to justice attract the sympathy of the public opinion?

There are a couple of developments which, although not necessarily bad ― perhaps even positive ― in themselves, might be making the problem worse. One is that that relatively few politicians are lawyers, and fewer of those who are have actually practised law than might have been in the past. (I might be wrong about this… I would welcome corrections.) Of course, lawyers have no God-given right to govern, and more occupational diversity among politicians is almost certainly a good thing. But if more politicians were aware of how serious the problems of access to justice are, they might just have been doing more about them. The other relevant development is that, to the extent the politicians have in fact done something about the difficulties with access to justice in the courts, their response has mostly been to steer people out of the courts altogether, whether into alternative dispute-resolution fora or into administrative tribunals set up to take over the resolution of some common disputes that the courts would otherwise have dealt with in the past. Again, these alternative mechanisms need not be a bad thing. They might, indeed, be providing more effective forms of adjudication or fuller compensation than even a perfectly well-functioning court system would. But by relieving some of the pressure on the court system, they probably help ensure that nothing much gets done about making it into an accessible and well-functioning one.

Perhaps this is all just a self-interested rant. I am a lawyer, after all, albeit not a practising one. Of course, the public resources are limited, and there are many claims on them. Should the government spend on courts money that it is also badly needed in the schools or in the hospitals? Many people will not agree with that, even though, as I wrote here, the “existence and accessibility [of courts] are essential to what government itself is ― the kind of government we have anyway, one based on the law and not on arbitrary power.” And even if not a self-interested rant, this post is at most sad meditation. Sad, and inconclusive.

Legal Self-Services, Part Deux

Just a follow-up to yesterday’s post about the impact of a “self-service mentality” on the legal profession. This mentality, I suggested, is part of what explains the surge in self-representation. Josh Blackman, of South Texas College of Law, says something similar in a blog post, but his perspective is different and more optimistic. Prof. Blackman points out that “[t]he very same generation of law students who like to do things ‘self-service’ are also the MBA students who will want to obtain legal services in that fashion.” He thinks that self-service-oriented lawyers will be better positioned to meet that demand.

That’s correct I suppose. And it may well be that sophisticated clients can use the legal self-service to their advantage. Perhaps – indeed, hopefully – the self-service model can be adapted for “ordinary” litigants as well, allowing them to benefit from a form of professional help without having to pay the full price if they cannot afford to. The trouble, however, is that those who are categorically averse to paying for legal services because they think they can learn all they to know about the law on their own – which, I am sure, is the case of more than a few, though probably a minority, of self-represented litigants – will not take advantage of the self-service model.

The self-service mentality is already changing the legal profession and affecting the access to justice problem, and its effects will only become stronger. It is change both for the better and for the worse.

Legal Self-Services

Jim Gardner, of SUNY Buffalo, has an interesting post at The Faculty Lounge, arguing that

[t]he capacity to acquire information, shop, travel, and do almost anything without human intermediation is conceived as a right, or at least a new baseline norm. Insistence upon the necessity of human interaction as a condition for completing a transaction is now the deviation requiring justification. At the same time, whether human adjuncts to transactions add value seems to be a matter of deep skepticism.

This certainly rings a bell. For what it’s worth, I usually prefer finding information myself (online) to asking for it; I am annoyed when I have to go to a bank teller instead of just using an ATM; and so on. (Though, unlike in prof. Gardner’s most extreme example, I have not taken to resolving disagreements with my room-mate via texting.) In prof. Gardner’s view, this creates problems for legal education (because students are skeptical about the value of human educators and advisers) and is bound to create problems for lawyers who, imbued with this self-service mentality, might lack the personal skills necessary to be professional, effective “human adjuncts”.

But there is another way in which the self-service mentality is already affecting the legal profession. As anyone involved with the legal system probably knows, it is increasingly common for litigants to represent themselves, causing no end of grief to themselves and serious troubles to lawyers and judges who have to deal with them. And while the cost of legal services, and lack of funding for legal aid (especially in civil matters) is a major cause of this problem, it is not the only one. People choose to forego professional assistance, even when they could afford it. They take false confidence from the availability of a great deal of legal information on the internet. The emergence of the self-service mentality described by prof. Gardner helps explain why.

But although share that mentality myself, it is important to stress that when it comes to law – as probably in at least some (though surely not all) other areas – it is a dangerous one. For people who choose to represent themselves rather than rely on a lawyer, consequences tend to be sad. As I wrote here,

law and justice, as any first-year law student learns, are very different beasts. CanLII might succeed in its stated goal, which “is to make Canadian law accessible for free on the Internet.” Yet it seems that by making law freely accessible, such resources give people a false sense of being able to succeed in the legal system without professional help, and even without more than a very superficial acquaintance with it, which leads them to fail to get the justice, if any, that the system could give them if used properly.

As I said back then, if you can help it, don’t try it at home.

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My apologies for the lack of posts lately. There seems to be little going on worth posting about, or perhaps my brain is in aestivation.