Thursday, April 2,
1998
The
Ottawa Citizen
Deadbeat
judges worse than
greedy lawyers
BY
LYNNE
COHEN
With
all due respect, Mr. Justice Frank Iacobucci, I think
Your Honour may have been sitting too long on
the bench at the Supreme Court of Canada, and consequently lost touch with
frontline lawyers.
The
hard truth, sir, is that far from being
greedy, as you so eloquently allege lawyers are in the Citizen's Mar.
30 Page 1 article ("Judge scolds greedy lawyers"), many in the
trenches are having a hard time making ends meet. Others, I dare point out,
are choosing not to practise at all or quitting before they go bankrupt.
Granted,
the concept of greedy lawyers reflects widespread public opinion that blames
the legal profession for all society’s problems. If you think I'm
exaggerating, just remember the only joke absolutely everyone knows is the one
about a single lawyer at the bottom of the sea being a good start.)
Your
Honour's public rebuke does nothing to dispel this popular and harmful
misconception. Like all specia1ists,
1awyers must charge for their specialized services, at least enough to pay
their office and home expenses, and to put a little away for retirement, What
amount they should charge or receive obviously depends, as does every dollar
not paid out of government coffers, on the market, and on how tenacious
clients are in pursuing sometimes ridiculous claims.
Certainly,
some lawyers - like
some accountants, dry cleaners,
and, I dare say, even some
judges - are
greedy, But surely this is the
exception.
May
I turn Your Honour's attention to Canadian Lawyer's 1997 National
Compensation Survey? Since Your Honour understandably has no time to read such
mundane periodicals, please allow me to summarize.
Accordingly
the survey, there has been
- among
both sole practitioners and law firms in Canada -
a “decided drop in annual
targets for billable hours," a fee mechanism which Your Honour clearly
denounces in the Citizen article. The survey found that, while annual
goals over the last decade saw some lawyers aiming for 2,000 or more billable
hours, last year's average target was a mere 1,600 hours for both associates
and partners.
The
survey also notes, among many other recent alterations, the growing trend
toward paying junior lawyers according to fees collected rather than fees
billed. This glaring payment change only serves to spotlight the increasingly
rough time lawyers are facing in collecting owed money once the legal work
is done.
Your
Honour's noble suggestion - that lawyers redefine their ideas of success,
values and goals to emphasize their role in the service of clients and
society - would
surely be leapt at by all in
the profession if they weren't already almost unanimously following the idea.
This
is not to imply that Your Honour's recommendation is trite, only that Your
Honour has probably forgotten the way overworked bar admission students must
dedicate many more hours to studying the Law Society's enforceable
Professional Conduct Handbook than to learning how to set up business
accounts.
And,
in case lawyers forget their legal/ethical obligations, the Law Society
reminds them every two months in its Gazettes which list all disciplined
colleagues' cases, the most svere of which end in suspension or
disbarment for mishandling funds.
Though I have very limited experience in the
legal jungle, I have never interviewed, worked with or worked against a lawyer
who wasn't totally devoted to his or her client, even after that client has
stopped paying, and even when that client is a desperate but stupid and proven
liar.
Your
Honour, who surely at one time practised law on the bottom rung, must admit
lawyers perform the hardest mental and verbal tasks imaginable, from
researching complicated ancient British cases to articulating the most minute
and seemingly most insignificant details to obviously bored judges.
Which
brings me to my final point. I hope Your Honour won't think I am too impolite
for pointing out that the real problem lies with, to borrow a term coined by Citizen
columnist Dave Brown, “deadbeat judges."
That's
right, the biggest snag in the system lies in detached, insulated, salaried
provincial court judges who are not in any overt way encouraged to think hard
about the interim motions they rule on. Unlike practicing lawyers, whose
remuneration ultimately depends
on job performance, judges are not the least bit accountable to the plebeians
who foolishly trust them to
make fair judgments.
Even
when they make obvious and egregious legal mistakes, judges simply retire to
their chambers where they remain completely protected from
the expensive and painful fallout.
A
case in point. When a dear friend
of mine could no longer afford
a lawyer, I helped prepare a motion to be argued in front of a judge in order
for the friend to receive long-owed child
support. (In fact, this friend was in court without a lawyer to correct an earlier
judge's error, which itself was compounded by a later judge's error. But I
digress.)
Despite
a flawless and brilliant presentation by my friend, the annoyed judge
dismissed the motion for an invalid reason. Though a statute was ignored, the
only recourse, we were told by the judge's secretary, was to hire a lawyer and
appeal the decision.
Clearly,
judges alone possess the opportunity to nip many unfounded cases in the
proverbial bud before they take off into endless, meaningless, and
unconscionably expensive ordeals, during which everyone -
except the judges -
gets exhausted by the time the
money does.
Lynne
Cohen is a Nepean writer and
non-practising lawyer.