Our response to the Canadian Bar Association

Macleans.ca staff | Aug 2, 2007 | 2:44 pm EST

The following is the editorial that ran in our August 13 issue in response to the Canadian Bar Association's condemnation of Maclean's magazine, and its request for an apology for our August 6 cover story, "Lawyers Are Rats." Maclean's gave the CBA a page in the magazine to respond to our cover story, and we posted their press release condemning the magazine on our website. Maclean's requested the CBA circulate our response to its members. So far they have declined to do so. The subject of our interview, Philip Slayton, has challenged the CBA to debate the issues raised by our piece, but the bar association has so far declined that as well. Furthermore, the CBA has repeatedly attempted to apply financial pressure to our parent companies, Rogers Publishing and Rogers Communications Inc., in order to force an apology from Maclean's.

Ken Whyte, Editor-in-Chief and Publisher of Maclean's, made the following comments: "That the CBA would refuse to debate the serious issues raised by our piece and instead try to -- let's put the best face on this -- use its financial muscle to purchase an apology from us rather confirms the sentiment of our cover line."

Last week, we published as our cover story an interview with Philip Slayton, an ex-Bay Street lawyer and the former dean of law at the University of Western Ontario, who, after 41 years of teaching and legal practice, has written a book accusing his profession of failing its cherished ideals and working to the detriment of society.

Mr. Slayton describes the world of Canadian law as miserable, amoral, obsessed with making money, rife with fraudulent and unethical activity, poorly regulated, and indifferent to issues of justice. In plain language, he argued that lawyers are rats, a phrase we chose as our cover line for the issue.

In all honesty, we had misgivings about the headline. Before we go to press, we always ask ourselves whether our cover will engage a reading audience. It wasn’t difficult to imagine dismissive reactions to that particular line: “it’s redundant,” or “it’s not news,” or “at least they’re not journalists.”

But we looked again at the interview and concluded that the line was a reasonable reflection of Mr. Slayton’s views, and that what he has to say is newsworthy — it’s not every day that an intelligent, sincere, and accomplished individual who has given his entire working life to legal work and education takes the trouble to call out his profession. Even before the magazine had hit newsstands across Canada, the Canadian Bar Association issued a release condemning Maclean’s for publishing the interview. It launched a countrywide campaign to combat the “outrageous” accusations in the interview, and to dismiss them as the rantings of a lone disaffected practitioner. The president of the Ontario Bar Association, evidently believing the CBA had wimped out, followed up by comparing us to Nazis and suggesting that lawyers are all that stands between civilization and tyranny.

We have extended our Mail Bag section this week to give voice to the CBA’s response, and to many of the lawyers, legal associations, and interested readers who took exception to Mr. Slayton’s comments. We encourage readers to give them a fair hearing. These are complicated and important issues, and reasonable people may find grounds to disagree with our interviewee.

Meanwhile, we’d like to explain to the members of the legal community who wrote us why we won’t be answering the CBA’s call for us to apologize for Mr. Slayton’s “distorted” remarks. The characterization of Canadian lawyers as amoral, obsessed with money, and indifferent to issues of justice is hardly new. A few years back, Roy McMurtry, then chief justice of the Ontario Court of Appeal, told the Law Society of Upper Canada that undue emphasis on the bottom line “has led in recent times to a lessening of recognition of the importance of the ethics and culture of public service.” Justice Rosie Abella of the Supreme Court of Canada hit the same notes in a 1999 speech about a “crisis of professionalism” that threatens the “very legitimacy” of the legal profession. University of Windsor legal ethicist David Tanovich writes that over the past two decades legal practice has come to mean “competition, maximization of profit, and efficiency rather than public service and the pursuit of justice.” In other words, lawyers have joined the rat race.

Days before our story hit the streets, Brent Cotter, University of Saskatchewan dean of law and the former deputy minister of justice and deputy attorney general in that province, publicly lamented his profession’s lack of concern with the fact that it had priced itself out of reach of average Canadians and appeared indifferent to “the consequent denial of access to justice for those for whom legal aid is not available, but who cannot afford a lawyer.”

As to Mr. Slayton’s contention that the profession was failing to police itself adequately, we refer again to Brent Cotter who also spoke of “significant institutional failures of self-regulation, inadequately addressed by the legal profession” in Canada. He felt that these failures “invite criticism and investigation” and threaten the long-term viability of self-regulation. There is in fact a vast literature on the problems of lawyerly self-regulation, and none of the commentators accuse the legal community of being too vigilant with itself. Indeed, the problems Mr. Slayton cites are among the reasons parts of Britain, Australia, and other jurisdictions are jettisoning it.

That leaves miserableness and ‘rife with fraudulent and unethical activity.’ We haven’t found the lawyers in our ambit to be especially miserable, but Roy McMurtry was concerned enough about his colleagues to see relevance in a U.S. study that discovered higher levels of “divorce, depression, severe stress, suicide, alcohol abuse and drug addiction among lawyers.” He also noted that an Ipsos-Reid survey presented to an annual CBA meeting found lawyers to be more dissatisfied than other professionals.

On the last point, Mr. Slayton was referring in particular to fraudulent and unethical billing practices. We’re not experts on this so we’ll have to refer you to a paper on the CBA’s own website by law professor Alice Woolley of the University of Calgary. Here’s the abstract:
“In the United States hourly billing by lawyers has been demonstrated to lead to both inefficiencies, where clients pay for work done to generate hours rather than results, and dishonesty. While the vast majority of Canadian legal work is billed on an hourly basis no attempt has been made in Canada to analyze either whether hourly billing leads to the ethical problems here or whether the regulatory regime governing hourly billing by Canadian lawyers is sufficient. This essay argues that hourly billing leads to inefficiency, the temptation to be dishonest and to dishonesty, in fact, in the Canadian professions.”

In a 2005 paper, Professor Woolley writes that the “ethical problems arising from hourly billing are well documented,” and cites academic literature that describes unethical billing as a “genuine professional plague” and “a silent epidemic.”

Which brings us finally to the CBA’s argument that we have unjustly smeared each and every lawyer in Canada with the shortcomings and transgressions of a few. We don’t dispute that there are many hard-working and honest lawyers in Canada. It is nonetheless clear the problems raised by Mr. Slayton are not nearly so isolated as the CBA suggests; rather, they preoccupy many of the best minds in the legal community. What’s more, the whole point of being a self-governing community is that member-practitioners are collectively responsible for the welfare of the profession. Every Canadian lawyer is implicated in the failures of the Canadian legal profession cited by Mr. Slayton and the various experts above.

Until the CBA wrenches apologies from Roy McMurtry, from Rosie Abella, from Brent Cotter, from professors Tanovich and Woolley and the hundreds of other concerned professionals who have been quietly worrying and debating the same issues raised by Mr. Slayton in our magazine last week, we feel no need to tender our own.

Mr. Slayton has done the Canadian legal profession a service by going public with his concerns. As professor Tanovich notes, one of the problems in assessing and policing unethi-cal conduct among Canadian lawyers is “the wall of silence that forms part of the elite firm culture.” Our interview broke through the wall. And, yes, our headline was tough, but one of the bright consistent threads through the literature on the problems of the Canadian legal profession is that legal professionals are more interested in maintaining a lucrative status quo than in confronting the need to reform. You have to shout, in such circumstances, to get their attention.