"First thing, let's kill all the lawyers"

Following up on a post last week, regarding the efforts on the part of government, and in fact, our own law societies to minimize the use of lawyers, ironically, I received a letter from my local Bar Association seeking to have me sign a letter to the Alberta Government seeking to demand greater availability of non-lawyer assistance for family litigants.

My growing realization is that the Government find lawyers an "annoyance" and would prefer to be able to organize society without the impediment of those trained in "speaking their language" to make them accountable.

As such, my response:

I'm far from seeking to "shoot the messenger", so while we may disagree on the point in issue, it’s not personal. However, the Lethbridge Bar Association – if it intends to pursue a political effort, should at a minimum seek to advise it’s members in advance of those intentions. I have about had it already with the Canadian Bar Association failing miserably in its efforts to actually represent the profession as a whole, as opposed to the misguided but loud minority who feel it appropriate for us to apologize profusely for having spent tens of thousands of dollars to pursue an education and then have the temerity to expect to be paid for providing the skill that we paid so dearly to acquire.

At face value, who can question the motives of those who seek to help those less fortunate than ourselves?

However - particularly for those of us who practice family law, I think the implications are of great concern, and both the well-intentioned in the LBA and our own Law Society appear to be oblivious to the implications of what “access to justice” may mean for our profession.

In Henry IV, part 2, there was a simple-minded criminal, Dick, who was seeking to overthrow the King in some anarchistic or libertarian effort to allow everyone as much ale and food as they might desire. Of course, to do that, he joked,

"The first thing we do, let's kill all the lawyers."

Why would he say that? Well, there are two interpretations – one is on a surface level that Dick was simple and figured without lawyers, everything would be easier. We wouldn’t be wasting the “skin of an innocent lamb” to make parchment. Who needs “rules” for society to operate – keeping in mind that Dick was basically a thug and a criminal who found the law an annoyance. The other, darker and deeper implication is that, in order to overthrow the authority of the state, to take control, one must first remove the impediment of laws and justice.

Think about that for a second and consider:

a) The efforts to “simplify” access to the family law area by the introduction of “fill in the blank” Family Law Act forms;
b) The efforts to provide non-lawyer assistance to litigants to help fill in those forms;
c) The efforts to assure that lawyers are unnecessary to collect support, and, now, to review support under the new MEPS maintenance recalculation service;
d) The efforts to expand, rather than police, the use of paralegals to represent parties in the system.

If practicing “law” is truly something that can be done without a law degree, one questions why we renew our memberships on an annual basis. One questions why we bother to go to 7 years of university. If “representation” is a matter of filling in blanks and then sending people off with 5 minutes of advice, well, why is it that, frequently, it takes ME six months, and demands from the bench for cross-examinations and voluminous and detailed disclosure, in order to vary support – whereas the suggestion is that anyone can just fill in a form with MEPS and have some clerk with no educational requirements at all to do the job without the need of a Judge at all?

Lest this be considered a “self-serving” position, well, I would only suggest with some lack of humility, perhaps, that I am not likely losing a single client to these efforts. My own clients, typically, have enough at stake that their investment in legal representation appears to be a necessity to them – as opposed to a luxury.

However, I recall the last time I volunteered for the Legal Guidance clinic having a woman come into see me regarding a maintenance review, earning $76,000.00 per year as a nurse.

I’m thinking, Scott, she could have retained counsel quite certainly. I am thinking that with advice of the Legal Guidance office and with a little help from the FLIC (Family Law Information) office, she quite clearly would have been assisted in taking decent paying work from one of our own members. Her barrier to “justice” was not financial, other than in the sense that if someone is going to “give it away” she was prepared to take it. It was after that evening that I declined further volunteering in the program.

The Law Society of Alberta is not made up of young lawyers who are scrambling to make a living, repaying student loans, and seeking to establish a clientele. It is made up of seasoned, experienced counsel, who left those days long ago, and who have the luxury of being noble about allowing clients who can’t pay $5,000.00 retainers to run their own litigation on the taxpayer’s dime.

For younger lawyers, such as you, Scott, I would be concerned indeed with the idea that, perhaps, our government and our own Law Society, is complicitous is assuring that, “The first thing we do, let’s kill all the lawyers.”

We are an annoying bunch, us lawyers. We stand up against the might of the state when no one else will. We see through veiled efforts to deceive our clients by their spouses, we challenge them where they seek to hide income and assets in a way that the FLIC office and a bunch of “fill in the blank” Family Act forms cannot possibly respond to. Better we honestly and fairly value our efforts and say, what we do cannot be replicated by some administrative effort to fill in the cracks with some crumbling mortar that just increases the mess – which in fact is what so much of the “access to justice” is.

It is an effort to simplify the complex and, will have two impacts which are ignored:

a) It will remove food from our lawyers’ mouths; and
b) It will deceive the public that what we do is easy and simple – when we all know it is not.

I would prefer to not facilitate demeaning what we do as a profession by replacing lawyers with paralegals or civil service employees, and I would prefer not deceiving the public that resolution of their problems is easy.

Beyond that, I have two other questions for those who support the tenor of the letter you drafted:

- Where, Scott, is the Lethbrige Bar Association when the Collaborative Lawyers seek support? Not to pay us, personally, one thin dime – to simply help us communicate the idea of “collaboration” to the world?

- Where, in fact, is our Law Society of Alberta, when the Collaborative Lawyers say, “Help us help people resolve their problems outside of the system.”?

I can tell you how much support we have received to this point in time.

Zero.
Nada.
Zilch.

Not a damned thing.

And it’s an embarrassment when Alberta, which was the pioneer Province in Canada to embark on the effort towards Collaborative resolution has completely ignored the process, both at a government level and at the law society level, yet, we spend literally millions of dollars per year on a ham-fisted effort to pretend that lawyers are either unnecessary or should work for free.

When I attend international conferences every year and report the extent to which our Province has utterly and completely failed parties in the Collaborative process, compared to the significant effort of so-called “red neck” states like Texas, they just shake their heads.

And so do I.

Rgh.

So.

If you, as a taxpayer, have a concern with government spending your money to help people, poorly, to argue amongst themselves, well, you might want to write your own letter to your MLA.  Regardless of the self-interest of lawyers being paid for what they do (sorry), the profusion of effort to help more people get to court easier and cheaper, costs the tax payers MORE money, not less.