Systemic Racism, Clients, and the Law Societies

Slaw.ca, December 2023

Systemic racism is a reality in Canada.  At many junctures in life, a person’s access to opportunities and fair treatment will be affected by their race, skin colour, or indigineity.  The legal profession, in order to do its essential work in our society, must recognize and confront systemic racism.

So far, most formal efforts to do so have focused on racism’s effect on lawyers, law students, and others who work in the law.  (See for example the action plans from the law societies of BC and Ontario, as well as Alberta’s “My Experience” project). These are worthy and very important efforts.  But something might be missing: attention to the effects of systemic racism on actual and would-be clients.

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Justice Denied: Constitutional Remedies for Systemic Delay

Slaw.ca Access to Justice Column, December 14 2022

Found Online at https://www.slaw.ca/2022/12/14/justice-denied-constitutional-remedies-for-systemic-delay/

Justice Delayed

Suppose you run a small widget-making business in Ontario. You sent crates of widgets worth $100k to a customer, but they refuse to pay. They say there’s something wrong with the widgets, but you know this isn’t true and you can prove it. The good news is that contract law obliges your customer to pay you, and procedural law allows you to seize their assets to satisfy the debt if they don’t. The bad news is that, if you sue and the other side plays hardball, it will probably take at least four or five years to get the matter to trial. By that point, the mounting toll of wasted hours and legal fees may well have led you to abandon your claim, or settle it for pennies on the dollar. If you do persevere, there’s a good chance your defendant will have disappeared or gone bankrupt by the time you get your judgment.

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What Makes a Settlement “Bad”? Harvey Weinstein, Jeremy Diamond, and the Limits of Private Resolutions

Slaw.ca Legal Civil Procedure Columm, October 18, 2022

Found online at: https://www.slaw.ca/2022/10/18/what-makes-a-settlement-bad-harvey-weinstein-jeremy-diamond-and-the-limits-of-private-resolutions/

“A bad settlement is better than a good trial.” Every year, I pass along this old lawyer saying to students in my Civil Procedure and Legal Ethics classes. The idea is that pushing on to a hearing is expensive, risky, and time-consuming. Even a far-from-ideal settlement might be better overall.

Thus, lawyers must “advise and encourage” clients to settle their disputes so long as there is a “reasonable basis” to do so, according to the Rules of Professional Conduct. Courts and tribunals strongly encourage settlement with mandatory mediation, cost incentives to settle, and judicial pretrials among other mechanisms.

Of course, I hasten to add in class, bad settlements are not always better than the alternative. What can make a settlement bad enough that lawyers, legislators, and judges should refuse to accept it?

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Justice at Tribunals: At the Government’s Whim

Slaw.ca Access to Justice Column, April 7, 2022

Found online at: https://www.slaw.ca/2022/04/07/justice-in-tribunals-at-the-governments-whim/

Suppose that “JM” is a Canadian person, who believes that their legal rights have been infringed. The problem might have arisen at work, at home, with a corporation, or with some part of the government. JM has tried to resolve the matter privately with the other side, but got nowhere. Next, JM did some online research and perhaps spoke to a lawyer. It turns out there is a public body that’s supposed to make decisions, and uphold rights, in disputes like JM’s.

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Justice in Your Neighbourhood?

Slaw.ca Access to Justice Column, December 22, 2021

Found online at: http://www.slaw.ca/2021/12/22/justice-in-your-neighbourhood/

I live in Etobicoke, Toronto’s western suburb. We used to have our own courts, right here in the west end. There were family and criminal courts at 40 East Mall, and a Landlord Tenant Board outpost on Dundas Street West. Just over the Humber River, in the original City of Toronto, there was a Small Claims Court on Keele Street (pictured above). People asserting civil rights, or facing criminal charges, could visit a courthouse in their own community.

Nowadays, there isn’t a single physical court or tribunal of any kind in Etobicoke.

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Building Up the Rule of Law in Ontario – Ministerial Zoning Orders and the Ford Government

Slaw.ca Column, October 7, 2021

Found online at: http://www.slaw.ca/2021/10/07/building-up-the-rule-of-law-in-ontario-ministerial-zoning-orders-and-the-ford-government/

“Should they really be allowed to put up that building there?!” Land development is controversial, especially in areas that are growing quickly. As someone who is running for office in one such area, I have heard quite a bit about these issues from voters.

The issues are seldom black and white.

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What’s Your Procedural Pet Peeve?

Slaw.ca Civil Procedure Column, August 13, 2021

Found online at: http://www.slaw.ca/2021/08/13/whats-your-procedural-pet-peeve/

Our justice system isn’t all bad, and in some ways it’s getting better. Some things in the system might have to be difficult and complicated, because life is complicated and so is the law. But there are also plenty of things that seem unnecessarily difficult and complicated. I’m talking about things that could be fixed without a lot of controversy or money, just by thinking carefully about how they affect the system’s users.

One that has always irritated me is Rule 4 (“Court Documents”) in Ontario’s Rules of Civil Procedure. It lays out all of the technical requirements for documents used in Ontario actions and applications. (I dare you to read it through.)

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Standards, Rules, and Law’s Quest for Certainty

Slaw.ca Access to Justice Column, June 11, 2021

Found online at: http://www.slaw.ca/2021/06/11/standards-rules-and-laws-quest-for-certainty/

Law should be drafted in a way that prevents litigation. Statutes, regulations, and precedents should ideally let people predict the decisions that legal authorities would make, if presented with certain facts. If the “shadow of the law” is sharp and clear, then people can avoid and resolve disputes instead of spending time and money litigating over them.

Often, however, it is difficult to create law that both keeps people out of court, and ensures that the resolutions they reach out of court are fair and just.

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The Accountability Gap and The Struggles of Our Civil Justice System

Slaw.ca Legal Ethics Column, April 22, 2021

Found online at: https://www.slaw.ca/2021/04/22/the-accountability-gap-and-the-struggles-of-our-civil-justice-system/

Conflict management systems are increasingly common within large corporations and other organizations. Workplace interpersonal disputes and bad behaviour are inevitable, but also manageable. Interests can be reconciled, rights can be upheld, and peace can be restored. A conflict management system is built to do exactly that.

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If You See Something, Say Nothing: Why Lawyers Don’t Report to the Law Society

Slaw.ca Legal Ethics Column, December 2, 2020

Online at: https://www.slaw.ca/2020/12/02/if-you-see-something-say-nothing-why-lawyers-dont-report-to-the-law-society/

In identifying professional misconduct, legal regulators are heavily reliant on client complaints and receive relatively little help from practitioners. For example, 71% of complaints to the Law Society of Ontario in 2019 were brought forward by members of the public (typically clients) while only 12% came from legal professionals. The problem is that there are many forms of professional misconduct that only professionals, and not clients, can readily identify. Misconduct therefore goes undetected, leaving clients and others to be victimized by bad lawyers who should have been caught after previous offences.

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Judicial Analytics: Facing Uncomfortable Truths

Slaw.ca Legal Ethics Column, October 20, 2020

Found online at: https://www.slaw.ca/2020/10/20/judicial-analytics-facing-uncomfortable-truths/

For as long as there have been judges, people have tried to predict judges’ decisions. In so doing, they have always understood that judges are human beings. They are not calculators from an assembly line, each of which will display the same result if one punches in the same inputs. Thus, at any watering hole where litigators gather, it will be overheard that “Justice Smith comes down hard on drug offenders,” or “If your client has soft-tissue injuries, you had better hope that you don’t draw Justice Jones for the trial.”

In France, it would seem that such conversations are now illegal. Loi no 2019-222 du 23 mars 2019 forbids the use of information about the identity of judges in order to evaluate, analyze, compare or predict their actual or expected decisions.[1] The Assemblée nationale was worried by the emergence of artificial intelligence applications which crunch data about prior judicial decisions, and use it to predict decisions. An excellent forthcoming Dalhousie Jaw Journal article by Amy Salyzyn and Jena McGill argues persuasively against this ban. Salyzyn & McGill also identifying the challenges and opportunities posed by the emergence of mainstream “judicial analytics” technology.

France’s ban on judicial analytics is a bad idea, but there is a noble sentiment behind it. People aspire to live under the “Rule of Law,” and not the “Rule of People.” We want, and we should want, the outcome of legal disputes to depend exclusively on the facts and the law, and not on what individuals happen to adjudicate those disputes.

Undeniably, however, there are patterns in decisions which can only mean that the identity of the judges affects the outcomes. To take a Canadian example, Sean Rehaag has demonstrated that the outcome of a refugee case before the Federal Court of Appeal depends significantly on which judge happens to hear it. Modern judicial analytics simply brings these patterns to light more consistently and quickly than lawyers’ shop-talk did in previous generations.

In the words of Friedrich Hayek, “the law cannot rule. Only men can exercise power over other men.”[2] Much as we might wish it to be so, it cannot be reasonably maintained that the law itself always makes the all the decisions, with judges merely serving as its neutral mouthpieces. France’s ban on judicial analytics is an effort to suppress this uncomfortable truth and preserve what is, at best, a noble lie. It is incompatible with the freedom of speech, and the accountability of public officials.

In addition to being misguided, the effort is probably futile in this day and age. If there is demand for judicial analytics in France, then someone will meet that demand from outside the country’s borders. We would all do better to face the uncomfortable facts that judicial analytics reveals about the nature of judging. With eyes wide open, we can work to design a justice system which, as much as possible, delivers consistent and fair results to everyone.

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[1] “ Les données d’identité des magistrats et des membres du greffe ne peuvent faire l’objet d’une réutilisation ayant pour objet ou pour effet d’évaluer, d’analyser, de comparer ou de prédire leurs pratiques professionnelles réelles ou supposées.”

[2] The Constitution of Liberty.

A Good Day for Self-Regulation: The LSO’s Family Law Paralegal Proposal

Slaw.ca Legal Ethics Column, July 30, 2020

Found online at: http://www.slaw.ca/2020/07/30/a-good-day-for-self-regulation-the-lsos-family-law-paralegal-proposal/

Paralegals have been licensed to independently offer legal services in Ontario since 2007. Their current scope of practice includes tribunal and small claims matters, provincial offences, and some other legal needs. Last month, the Law Society of Ontario’s Family Law Working Group proposed that paralegals, with special training, be allowed to offer family law services as well.

The scope of practice proposed for paralegals in family law is surprisingly broad. I had expected that it might be confined to guideline child support, straightforward parenting orders, and uncontested divorces. In fact, it extends to spousal support and matrimonial property division (except in some financially complicated and high-net-worth cases). Despite the lawyer opposition that this proposal is sure to encounter, a broad scope of paralegal family law practice may become reality. If so then cynics (like me), who suspected that the lawyer-controlled Law Society would never take the initiative to significantly expand paralegal practice, will have to reconsider.

A Normative Framework for Scope of Practice

The Family Law Working Group deserves applause for this brave proposal. Whether it has identified the right scope of practice is a more difficult question. My view is that the Law Society should act so as to maximize the aggregate welfare of consumers, and would-be consumers, of legal services.

  • broader scope of paralegal practice means more options and more competition — and therefore lower prices — for legal services. It also increases the number of individuals willing to make the investment necessary to obtain the paralegal family law license
  • Conversely, a narrower scope would mean that things like spousal support and matrimonial property division would remain reserved for lawyers. Family lawyers typically have more training than paralegals. (Although it is interesting to note that a licensed Ontario lawyer can offer any family law services whatsoever despite never having taken any family law courses whatsoever outside, of the bar admission process). Requiring a full lawyer license might mean better quality, along with higher prices, for consumers of these services.

From this welfare-consequentialist standpoint, defining license scope is a balancing act between consumer interests in price, quality, and choice. Did the Working Group strike the right balance? The data necessary to scrutinize their choices does not seem to be available at this time. However the Working Group’s document does describe what seems to be a rigorous consultation process, including meetings with more than 100 practitioners, experts, and psychometricians (which is a word that I had to look up).

Let us assume that there is an objectively correct scope of paralegal family law practice, and that is the scope that will maximize the overall welfare of consumers. Perhaps the Working Group has accurately predicted and laid out that scope, based on their consultation process. However it is also possible that predicting the correct scope — even approximately — is inherently impossible ex ante.  If so, then the LSO should be prepared to gather data about the experiences of family legal services consumers, and use that data to revise scopes of practice over time.

On the Demand Side

For prospective paralegal family law practitioners, the “juice” (career opportunities) must be worth the “squeeze” (tuition and time investment to acquire the license). The Washington State Limited License Legal Technician program was recently abolished.
Protectionist lawyers or reactionist regulators in that state might be part of the explanation, but there was also very limited take-up of the program. Five years after its inception in 2015, this it had attracted only 40 practitioners. If the licensing requirements are too onerous, and/or the scope of practice is too narrow, the LSO’s paralegal family law practice experiment could meet a similar fate. It is very good to see that the Consultation Paper considers these demand-side issues, adopting “Viability” of the program as one of its guiding principles.

Competition, and Social Responsibility to the Disrupted

What about Ontario’s family lawyers? There is every reason to believe that most of them offer high-quality, highly professional services to their clients. What if the new paralegal family law license dramatically undercuts demand for their services ? What if paralegals offer services comparable to those of family lawyers, at prices low enough to significantly disrupt the market? This fear, often unspoken, underlies much lawyer opposition to paralegal practice.

The threat to lawyers may be hypothetical, or overblown. The primary market for the new paralegal practitioners may turn out to be currently self-represented people, not people currently represented by lawyers. Some, or most, family lawyers might experience new competition from paralegals, but respond in a way that leaves them doing just as well as they were before. My research with family law and other personal plight lawyers has convinced me that the stereotype of lawyers as devoted to tradition, and unwilling to experiment with new practice models, has little basis in fact.

Still, new competition can certainly devastate workers through no fault of their own. Suppose that Floyd the family lawyer has jumped through all the currently necessary regulatory hurdles in order to offer family law services. These hurdles include 7 years of education, large tuition bills and student debts, the articling crapshoot, etc. Acting in good faith, Floyd has made an enormous personal investment in being able to help people going through separation. Now suppose that Floyd’s ability to earn a living from his investment in legal education is greatly undermined by the new paralegal competition. Floyd loses his job as a family law associate. He hangs out a shingle, but there is simply much less client work available now that paralegals are in the market.

Would that be fair to Floyd? Not really. Something should be done to help lawyers who wind up in this sort of position. That may be a job for the Law Society. However the issue is not really lawyer-specific. It’s part of the bigger public policy problem of how we as a society respond to fluctuations in the demand for labour of all kinds. Floyd is really in the same boat as the auto plant worker laid off because of foreign competition, the vehicle operator replaced by self-driving technology, and the waiter laid off due to Covid-19. Government must help such people with retraining programs, unemployment insurance, wage loss insurance, earned-income tax credits, and so forth.

However concern for the disrupted must not distract the Law Society from its clear statutory mandate to make decisions with exclusive regard to the public interest. If Convocation adopts the Family Law Working Group’s proposal for paralegal family law practice — or something similar to it — then it will be fulfilling this public interest obligation, in accordance with the best traditions of self-regulation.

The Law Society’s Family Legal Services Provider consultation is open until November 30, 2020.

The British Invasion: Legal Services Regulation Edition

Slaw.ca Legal Ethics Column, April 10, 2020.

Found online at: http://www.slaw.ca/2020/04/10/the-british-invasion-legal-services-regulation-edition/

Bringing British things across the pond is a hot Canadian trend. Prince Harry and Megan Markle are now our most famous immigrants. A Canada-U.K. free trade deal has apparently become a post-Brexit priority. And the Downton Abbey movie has raked in hundreds of millions of dollars from my parents and their friends.

While we’re at it, we should copy at least three aspects of legal services regulation as practiced in our erstwhile mother country. The U.K. has swept away many of the outdated and unnecessary restrictions on legal services that we still cling to. The payoff is better access to justice, without any apparent diminution in quality or ethics. Continue reading

Harassment in the Legal Profession: A Few Bad Apples?

Slaw.ca Legal Ethics Column, February 24, 2020.

Found online at: http://www.slaw.ca/2020/02/24/harassment-in-the-legal-profession-a-few-bad-apples/

Far too many people who work in law firms are subject to harassment by lawyers and paralegals. What, if anything, should our law societies do about this? Much depends on whether one sees the problem as “bad apples,” or as symptomatic of problems with the entire “barrel” which is the legal profession in Canada.

“Harassment” is defined by the Ontario Human Rights Code as “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” Harassment is often (but not always) sexual in nature. It is distinct from discrimination, but is often based on prohibited grounds of discrimination such as gender, race, or disability. Harassment is distinct from assault (which requires touching), but in many cases the harassing course of conduct includes assault.

Once you start paying attention, evidence of harassment in law firms is not hard to find. Every month, approximately 15 complaints are made to the Law Society of Ontario’s Discrimination and Harassment Counsel (DHC) , regarding alleged discrimination or harassment by a member of the legal profession. Sexual harassment is the most common complaint to the DHC, representing a quarter of the complaints. Racial harassment is also commonly recorded in this data. In a recent Globe & Mail article, Jocelyn Downie and Elaine Craig remind readers that Gerald Regan, a famous lawyer and former Premier of Nova Scotia, has been accused of sexual harassment and assault by more than 35 women. His success seems to suggest that this conduct is still taken lightly in many quarters. Continue reading