Herding Cats

There is an old saying that  managing lawyers is just like herding cats: neither likes being managed, herded or told what to do, as the Law Society of BC and the Attorney General discovered last week at the Society’s Annual General meeting, where the lawyers, hissing and scratching all the way, torpedoed the AG’s latest pet project.

The Government  is in the final stages of authorizing the creation of new categories of “Legal Service Providers”, and had hoped to toss the baton to the law Society to flesh out the concept, and assume the regulation of these new providers. The membership roundly smacked down that idea, instructing the Benchers not to participate in the licencing or regulating of family law para-legals, which the AG had hoped would be the first of the new breed.

The impetus behind the drive to end lawyers’ monopoly on the provision of legal services appears to be an increasing lack of effective access to the legal system, stemming from the ever spiraling cost of hiring a lawyer.  Increasingly, litigants are appearing  in court unrepresented, and it is clogging up the courts . The (unproven) theory seems to be that creating a new category of “almost-lawyers” who could, probably with restrictions,  provide some legal services, would lower the overall cost of those services.

The Law Society has certainly bought into the idea, since in advance of the AGM the Benchers embarked upon a bit of a road show to try to sell the concept to a skeptical membership. I attended one such meeting, and my take away was that the Benchers’ believed that the opposition of the membership was based primarily upon financial self- interest, since they repeatedly assured us that there would always be plenty of work to go round, and that the work lost to the para-legals would be work we really didn’t want anyway. They also tried wielding the big stick, warning us that we are a self-governing profession only at the whim of the legislature, who could spank us for misbehaving by taking away that status.

Interestingly, I didn’t hear a single whisper from the lawyers themselves, about protecting lawyers incomes, at either the pre-meeting dog & pony show or at the AGM proper, but I did hear a lot of heartfelt angst from my colleagues at the prospect of unleashing lightly trained paralegals on the public, especially in the difficult area of family law.

Family law stands at the nexus of domestic relations law, property law, the law of trusts,  income tax and business law,  estate law, and sometimes even criminal law. Clients family law problems can touch on all of these area of law, and the lawyers who practice in this difficult are worried about how those without a firm grounding in all of those facets of the law (such as is afforded by a conventional legal education: 3 years at law school and a year under articles) will be able to adequately advise clients. The advice given and decisions made during initial consultations on family issues are so important that many family law firms  won’t allow their junior lawyers to provide that advice without a senior lawyer riding shotgun, so what will happen when advisers with even less training than a junior lawyer start quarterbacking matrimonial cases.

Several speakers at the AGM spoke eloquently about the disservice inadequate representation would do to women and children, the most vulnerable segments of society to be impacted by family law issues. Clearly it was not about the money.

Proponents of the new para-legal scheme argue that para-legal competency could be insured, by designing a rigorous training course, perhaps of several years duration, which left most members  scratching their heads wondering where the savings would occur, if potential para-legals had to replicate most of a lawyers training anyway. Why couldn’t  we simply channel more students through the existing, long-established legal education system and achieve the same result ?

The lawyers won the skirmish at the Law Society AGM, but the battle is clearly far from over. The Benchers appeared stung by their defeat,and, lawyers all, they are also difficult to herd, so I am sure they will find a way to re-kindle the conversation about para-legals, and AG Eby has shown a disinclination to listen to rank and file lawyers on a number of topics, such as capping personal injury awards, ICBC reform, and now, the pitfalls of unleashing unsupervised para-legals on the public.

It is inevitable that change will come to the legal profession, indeed, it already has, but it is worrisome that the authorities leading the charge don’t appear to be listening to the very real concerns being voiced by the lawyers in the trenches.