Feature Articles

His body language was quite revealing last April 17, 2010 during Law Week’s Public Forum. Attorney General Michael de Jong nodded emphatically as lawyer Robert Bellows pleaded with him to remove the $6 search fee on criminal and traffic search fees because it was fundamentally unfair for defence lawyers to have such a burden, specially for those who handle legal aid. He promised to look into it, adding that he may not be able to remove the fee entirely because the government has to find a way to fund the service.

Spurred by the Times Colonist's series on access to justice, columnists Rob Shaw, Louise Dickson and Lindsay Kines even wrote a constructive article on five ways to improve access to court records last June 13, 2010, which included a request to minimize the fees.

It did not take long for de Jong to act. Shortly after signing Order In Council 143 last on June 11, 2010, he announced the government's decision to repeal the search fee effective August 31, 2010. What was most surprising about the decision was its swiftness and for their decision to waive not part but the entire fee.

The fees were introduced earlier this year in part to discourage frivolous use of Court Services Online (CSO) to search for criminal and traffic records. His ministry acknowledged that the media and legal aid lawyers made a compelling case that the fee was impeding their access to criminal and traffic records.

Effective Aug. 31st, the public can conduct free online searches of criminal and traffic records. Also, the public will continue to be able to view the records for free at public access terminals at courthouses.

Online court lists, which are updated daily, which provide information about court appearances, will continue to be available at no cost at:
www.ag.gov.bc.ca/courts/court-lists/criminal/index.htm.

“Our members asked us to make a strong case for the removal of a fee that, in our view, not only compromised equal access to the justice system but also risked increasing in-person demand and delay in court registry offices,” said Mr. Bond, the president of Canadian Bar Association of BC. “We are very pleased that the Attorney General listened to our concerns, and made the right decision in the best interest of the public and the administration of justice."

“This is a huge achievement for our papers, ” said BC & Yukon Community Newspaper Association General Manager, George Affleck. “The fees would have proven to be restrictive in that community newspapers already work on such tight budgets. Investigative journalism and court journalism would have suffered.

I would like to thank the AG for listening to our concerns and standing by his very public opinion that our judicial system should be more accessible not less,” Affleck continued.”

At press time, the ministry has not responded to our query on how it intends to fund the estimated $320,000 annual cost of operations.  

According to the Colonist, a new provincial guide to accessing court records would be prepared, staff would be informed of their obligation to provide information and policies would be updated. De Jong repeated the remarks he made during the Law Week : that “culture of protectiveness” that reduced access to information would be changed. Most of the changes, he said then, could be in place by the end of this year. It does appear that more incremental, albeit positive changes are on their way.

One of the most common complaints made by clients against lawyers is that the fees charged are excessive. All too often these complaints arise because the lawyer failed to specify in advance the basis upon which fees would be charged. Misunderstandings with clients often can be avoided if there is a full and frank discussion of fees at the commencement of the matter. This paragraph appeared in Section J of Managing Your Firm manual that Kathryn Sainty co-authored in 1995 when she was still with Kane Shannon Weiler.

Fifteen years later, she revisits the topic in her role as district registrar. Sainty reveals what preventative measures lawyers can adopt that will minimize their being called in for a review.

“The biggest thing that a lawyer can do is to explain to their client how they are going to be billed and what the potential cost of the legal services might be.” But she cautions lawyers to be careful about providing a quote for their legal services because it can be ripe for client misunderstandings. As a district registrar, almost half of the  fee review cases she sees are in the family law area. “Consider a lawyer, who was looking at a fairly straightforward separation agreement, who says to a client: I think this is probably going to cost you $5000 to $8000, assuming it is pretty simple with one set of negotiations. Well, the lawyer can attach all the assumptions he might have to the quote, but I can assure you all the client heard was $5000. The client will not hear the $8000 and the rest of the conditions. And when the final bill comes to $20,000 because the lawyer ended up going to mediation and to court three times and instead of a separation agreement, the client ended up doing a divorce, the client is going to turn around and say: But you quoted me $5000!”

To Sainty, the biggest issue is about communicating. “Send your client a letter written in plain language. Then review that letter at the next opportunity you see your client. Some clients are not as literate, so avoid being wordy. Keep your client informed throughout the life of their matter. Should there be a significant change in the circumstances, you should take time to explain the changes personally to the client.  Then follow it up with a letter to explain what the changes are and how these changes will affect the original arrangement they have with you.” She suggests saying something like this: “From a financial standpoint, this is going to cost you more. I wanted to remind you that I charge $300 an hour and that I am going to be billing you at that rate.”

Even if there is an agreement not to bill the client until the end, make sure that you send your interim bills periodically, as interim accounts are merely requests for money to be applied on a final account to be submitted later.

“Get into the habit of writing letters every time your client insists on not following your advice.” A simple letter to say: “Mr. Smith, I advised you not to make that court application because the chances of success were slim. But you insisted. As a result, we lost that application and this means we now have to incur additional costs in getting this done.” These letters may come in handy later on.

What to do at a review

While lawyers dread being called for a review under the Legal Profession Act, she feels that what is more worrisome is what it does to the relationship of the lawyer to their client.  “If the trust is broken one way or another, it becomes a difficult matter. As an analogy, it is akin to a breakdown of a marriage.”

One of the problems she sees is when lawyers, for reasons of their own, decide to represent themselves. “In my many years, I have seen lawyers who have been subjected to attacks.  In some instances this has caused lawyers to break down in tears, as some of the accusations inevitably are taken personally. It is tough to have ones’ account challenged. However, sometimes, the best way to get paid is for a lawyer to bring their account in front of a registrar.  The resulting Certificate of Fees is a judgment of the court and can be executed upon: it is a simple way of getting things done.”

Looking at this from the perspective of the lawyer who is trying to collect Sainty spoke about some of the incorrect assumptions those lawyers have, the onus of proof and what lawyers can do to help themselves survive their review.

“The absence of any complaints from their clients leads many lawyers to (incorrectly) assume that non-payment is because their client does not have any money, until both parties appear before the district registrar. All of a sudden, the client presents 22 things that they feel their lawyer did incorrectly.”

Remember that when a client initiates a review, the burden of proof is still with the lawyer. Furthermore, during the review, it is the lawyer who has to testify first and is subjected to cross-examination. The trouble with this is the lawyer may not necessarily know beforehand what the issues are. The absence of pleadings makes it difficult for the lawyer to find out what the issues are beforehand, unless both parties have had some discussions in advance of the hearing or an examination for discovery has been ordered to take place.  Sainty’s suggestion in these types of instances is for the lawyer  to request  that a pre-hearing conference be held to find out what these issues are. Presently, as a matter of course, district registrars set a pre-hearing conference for matters that are at least a day-long or for cases where the value of the fees being reviewed exceeds $25,000. Directions can be made for production of documents and there is an attempt to narrow down the issues so at least the lawyer knows what case they will have to meet.

To help the process along, district registrars are likely to ask the client at the start of the review hearing to identify the issues are and to get some focus. The client is encouraged to provide an executive summary of their concerns (ie did the lawyer not do what they were supposed to do, was the fee just too high, did they just not understand the hourly fees.)

Sainty identified another common mistake lawyers commit in that they do not set enough time for the review to be done, often forgetting that it takes longer for matters where one party (the client) is self-represented. “Lawyers sometimes come in and say: I did the work, I sent the bill and they refuse to pay. That is the extent of my evidence. In the Legal Profession Act, there are eight factors that a registrar must consider under section 71(4) of that Act. If a lawyer does a fee review hearing to get their bill paid, the lawyer ought to consider submitting an affidavit or address in his evidence the eight factors set out in section 71(4):

(a) the complexity, difficulty or novelty of the issues involved,

(b) the skill, specialized knowledge and responsibility required of the lawyer,

(c) the lawyer's character and standing in the profession,

(d) the amount involved,

(e) the time reasonably spent,

(f) if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable,

(g) the importance of the matter to the client whose bill is being reviewed, and

(h) the result obtained.”

Finally, Sainty wanted to remind everyone that reviews in essence are just like trials: there is an opening, live witnesses, direct, cross-examinations and submissions at the end. “We adhere to the rules of evidence and we follow the appropriate Rules.” And to the members of the profession, she pleads: “A lot of people treat registrar hearings like they are informal and casual events. Particularly when self-represented parties are present, it is absolutely imperative for lawyers to treat the proceedings with respect. It will help the hearing go much more smoothly. I always try and hold the self-represented party to the Rules, so the lawyers should expect to be held to the same standards. Lawyers have to take the lead in professional decorum, and professional lawyers will engender a better run proceeding.” Notwithstanding her efforts to burnish her stern reputation, her interview revealed two very valuable traits - her devotion to her profession and her smile.

 

Last March 2, 2010, with a month to go before marking her 9^th year as district registrar, Kathryn Sainty agreed to an interview at the New Westminster Courts to provide the members of the profession a better understanding of what it is that registrars do. After receiving the gracious support of Chief Justice Bauman, she and a number of her colleagues took time from their hectic schedules to put this article together.

Under section 13(2) of the Supreme Court Act: registrars, district registrars and deputy district registrars may carry out the duties assigned to a registrar by the rules and under any other enactment.  “A lot of people do not understand what a registrar does. Generally, we are lawyers who have been appointed as judicial officers, unlike deputy district registrars (whose functions are more administrative, and who are seen on the front lines more than we district registrars are). The registrar [the one referred to in subsection (1) of the Supreme Court Act] is actually Master McCallum.  So, my job title is "District Registrar" but we are usually simply referred to in court as "Madam Registrar", not a "Madam District Registrar".  And most lawyers in referring to me or in introducing me would refer to me as "Registrar Sainty". When I sign documents [orders, reasons, memos, etc.] I sign them as "District Registrar Sainty", unless when I deal with bankruptcy matters - then I am simply a registrar,

At present, there are 2 district registrars for the province: Murray Blok and Sainty, following Registrar Carolyn Bouck’s appointment as master last December 11, 2009. And while there currently is no job posting to replace Bouck, Mr. Frank Kraemer, QC, the Executive Director & Senior Counsel Judicial Administration, Superior Courts Judiciary said that there are no maximum or minimum numbers of registrars or masters.  Kraemer also noted that masters have concurrent jurisdictions to act as registrars. There are presently twelve masters in the Supreme Court. “The number (of registrars) is determined based on the need to provide service to the public and the resources of the Court.”

On Becoming a Registrar

Sainty was called to the bar in 1986. Initially she practiced mainly as a solicitor doing a lot of tax and securities work, and later in her career she practiced mostly family law. She started her career in the courts in 1997 as law officer for the Supreme Court of BC where her principal work was to research matters relating to the judiciary as a whole (for example, the use of cameras in the court room). She was also responsible for the annual report and for screening and interviewing potential law clerks. One day, an opportunity for an appointment as a district registrar came up in New Westminster and she was appointed to the position by (then) Chief Justice Brenner. Eventually, she was moved to Vancouver because there was more work and more complex and longer hearings. These days, Blok and Sainty (as well as the masters who sometimes sit as registrars) share the registrar’s work in the Vancouver registry.

Both Sainty and Blok sit all over the province. Often registrars are sent to other registries to do lengthier matters that may take three or four days. For example, in the year 2010, there was registrar’s work in New Westminster for 35 weeks. Sainty has sat in Victoria, Nanaimo, Chilliwack and Kelowna. “Everywhere there is SCBC work, there is registrar’s work. Sometimes, lawyers come to Vancouver to have their registrars’ matters heard. Sometimes we go to other judicial districts or we use technology, especially in outlying registries, as often there is not a day’s worth of work. Sainty has in the past conducted the Prince George registrar’s hearings by video link.

Kraemer adds: “When a vacancy occurs and/or the need for an additional registrar is identified, the past practice has been to advertise the position and conduct a competition; however, the chief justice also has the right to directly appoint a person into a registrar’s position. In the latter case, there is an expectation that the principles of merit will be observed.”

 As a district registrar, Sainty conducts quasi-judicial hearings such as assessments of costs, reviews of lawyer’s bills or inquiries into family law issues (to name a few). At the end of each hearing, Sainty must either give oral reasons for her decision or reserve and prepare written reasons for decision or a report to the court on a matter that has been referred to her for consideration by a judge or master. Her schedule is pretty routine and she tries to maintain it even if she travels to the different registries.  She has hearings from Monday to Thursday, and has set aside Fridays for writing her decisions, unless the hearing she is involved in is lengthy and in those instances she sometimes sits on Fridays to ensure a hearing concludes in a timely fashion.  Blok, on the other hand has hearings for four weeks and has set aside the fifth week to write his decisions. Sainty spoke about the two longest hearings she has had to handle so far: one that took 27 days and another that took 40 days to finish. Sainty thinks that these two hearings are the two longest registrar’s hearings in the record books to date.

To be appointed a district registrar, a person must have been called to the Bar for a minimum of five years. Most of what she learnt has come from self-study and on-the-job training. “When I first got the job, I was more likely to reserve judgments.  Over the last nine years, my reserve judgments have become less.”

She also has to review and grant (as appropriate) desk orders. This requires her to (sometimes) read materials and make decisions based on those materials. If Sainty cannot make a decision based on the materials provided, she may send a memo or note to counsel asking for additional information. In cases where she has given oral reasons for decision (usually on simpler matters), should a request for a transcript of the oral decision be made, she will often include the case law she has relied on in making her decision, even if not actually cited by her when she gave her oral reasons.

 

Moving Towards Long and Complex Hearings

The jurisdiction of registrars is completely statutory and therefore it is limited to particular areas such as reviews of lawyers’ accounts under the Legal Professions Act, assessments of costs under the Tariff of Costs, passing of executors’ account (Estate Act), and bankruptcy work (Sainty is also appointed as a registrar under the Bankruptcy and Insolvency Act) such as trustee opposed discharges of bankrupts, setting of trustee fees, and on occasion reviews of trustee decisions. In bankruptcy matters, a registrar has the same jurisdiction as a judge and can hear most bankruptcy matters, with the consent of all the parties.

Under Rule 32 of the Rules of Court, a judge or master may refer matters to a registrar to ascertain facts, for example when there is a need to establish an accounting related issue such as the income of a person or how much each party has contributed to a contested property.

Historically, registrars’ hearings have not been recorded. Many years ago, the hearings were conducted in a less formal way. There was even a point in time when some of the district registrars were lay people. Today, hearings in front of registrars may be quite complex. Sainty will often request that a clerk record a hearing: for example, if the matter is set for a full day; if the claim is more than $25,000; or there is going to be a number of exhibits; or where there might be a difficult litigant. While the number of clerks available is limited, if the hearing has some possibility of becoming contentious, then it is good practice to ask the Supreme Court scheduling office that a hearing be recorded.

 

How long is the queue?

When asked what the trend is for the average [waiting] days before someone can get in front of a judge, master or district registrar, Cindy Friesen, Director, Supreme Court Scheduling had this to share: “There are a significant number and types of cases that are heard by Judges, Masters and Registrars. Also, a number of factors impact the dates that may be offered to counsel/litigants for the hearing of a matter; including their time estimate and counsel’s/litigant’s/witness’ availability. Generally, the shorter the hearing, the earlier the Court can offer dates. Criminal trial dates are generally offered within 2 to 6 months; Family and Civil trials within 1 year. Chambers matters and Registrars’ hearing dates are usually offered within days or weeks. Further, a number of factors must be considered when prioritizing matters. “Priority” is not an issue when there are enough Judges, Masters and Registrars available to hear the cases to be assigned. “Priority” becomes an issue when there are more matters set to be heard than there are Judges, Masters and/or Registrars available. Typically criminal matters are our first priority, then family, then civil. However when looking at priority, the multitude of circumstances of the people involved in those specific cases is sought out by our Managers of Supreme Court Scheduling prior to assigning them.”

The final part of this interview appears next month.

How to Deal with Disruptive Innovation and Technology

Our challenge is to use innovative information technology to deliver services to clients in new ways.

In 1996, when he wrote the book The Future of Law, he foretold about the ubiquity of email in the profession and that the world wide web would be the first port of call for legal research (not the law library).

“I predicted that e-mail would become the dominant way in which lawyers and their clients would communicate with one another. In today’s environment, you will probably not think much about it,” Susskind retorts. “But at the time I had people saying that... I was dangerous to the legal profession and I didn’t understand confidentiality and security and that e-mail would only have a peripheral impact.” Today, emails are a way of life.

He asked his audience to keep an open mind as much of what he is saying will take time and the best thing they can do is to begin adjusting. Now.

“Our clients expect us to take advantage of our experience and standardise our work. In some cases, the better firms systematise and they go to the extent of leveraging knowledge management. Our internal processes should take advantage of technology: firms should use a digital on-line assembly to allow a good first draft. It will then be left to the lawyer to complete the review.”

Corporate Clients Have Moved to Outsourcing

Of the twelve ways to source legal services he singled out one: outsourcing because corporate clients are already taking the lead in doing it. Readers will recall that this trend was raised in Briefly!‘s September 2008 issue.

On January 26, 2006, the New York Times reported that the reason for the shift echoes the reason companies are sending other work abroad: they save substantial amounts of money. Some companies say they can reduce certain legal costs by as much as 50 percent, and receive work that rivals what they can obtain in the United States.

Rio Tinto began sending off legal work to CPA Global’s facilities in India last June 2009. To date, the routine work has saved Rio TInto 14 million dollars in 6 months.

In February 2010, Microsoft announced that it too was sending its work to CPA Global. More recently, on March 30, BT announced its intent to outsource its work to UnitedLex’s facilities in India.

“Globally, if a client wanted to lease lawyers, all they have to do is to work with a temp agency, like these two: Voxius [www.voxius.com] and Axiom [www.axiomlegal.com]. The lawyers who work there get paid only when they want to work, they get full benefits and there is little overhead - no mahogany paneled board rooms or fancy views.”

The message is clear: the routine portion of legal work has to be outsourced; however clients expect to pay for excellent bespoke work.

How Technology Impacts the Profession

Market leaders who ignore disruptive technologies do so at their peril. Using the tale of two giant firms as an analogy: Kodak who moved to offer its clients digital cameras and Polaroid who did not and as a consequence, is no longer around, he asked his audience: will your firm be a Kodak or a Polaroid?

If by 2050, the desktop computer will have the same processing power as the human race, why should lawyers be unaffected by this inevitable development?

“Where is your first port to find intelligence: Britannica or Wikipedia? Hard as it is to believe, independent studies have shown that Wikipedia does provide precise information. So why do we need to buy Britannica when Wikipedia is free? “

In Canada, the strong support of the Federation of Law Societies for CANLII means the days of fee for access to case law are numbered. Will the cost of legal research soon be close to free?

Susskind pointed out that the pace by which technology is moving is fast, consider instant messaging, blogs, social media like Linkedin or the ubiquitous FaceBook.  Communications used to be one way now everything is two way. And faster. In his research, he found that most of the lawyers in FB are not the partners but the juniors. Why do lawyers think they do not have to share information in the same way as others. The reality of course is that the clients of the law firms will share information more so now than before. Because the rapid innovations brought about social media entrepreneurs will enable clients to do so. Interestingly enough, the day after Susskind’s lecture, the F8 Facebook conference introduced "Community Pages" which will now make it easier for the public to share (legal) information before seeking legal advice, something which the former Chief Justice Brenner spoke about in the October 2009 issue of Briefly!.

Is the end really near?

So if the decline is inevitable, is it really the end of lawyers? Of course not, in fact there are many opportunities that have begun to arise, consider these six which he delves in detail at the conclusion of his book: expert trusted adviser, legal knowledge engineer, hybrids, legal process analyst, project manager, legal risk manager.

For law students who are the most skeptical who still think that the practice is still like the old days. He encouraged them to get mainstream legal training but they need to immerse themselves in it. They have to put aside their arrogance in thinking lawyers can over a weekend become experts, by putting sticky notes on their course materials.

He admonished managing partners not to confuse exploitation with training. Further, law firms should pay their juniors to learn at their expense (and not at their clients’ expense).

On how to train lawyers

Susskind describes how their PLTC providers are committing to e-learning (www.bpplawschool.com). But it is at the University of Strathclyde that the most ambitious legal e-learning is found. There, students benefit from the work of Paul Maharg, a pioneer of simulation-based training (www.ggsl.strath.ac.uk/courses). In an online fictional town, Ardcalloch, students play the part of solicitors in virtual law firms, and tutors take on the roles of clients and judges. Students learn by working together on simulated deals and disputes.

Notwithstanding his lamentation in his recent January 2010 Times article , “that it would be regrettable, of course, if law students were never to experience the thrill of assembling with peers in a fine hall and listening to an outstanding live performance. But we should not preserve the old ways in the delusion that such performances are commonplace. Unless the lecture is genuinely outstanding (a rarity, students say), the convenience and flexibility of e-learning will trump the benefits of the communal learning experience.” To prove his point, Susskind flew across the Atlantic through the Straight of Georgia to deliver an impressive and thought-provoking lecture  at the University of Victoria, undeterred by the disruption in flight services last week. Of course, the delivery of his lecture was supplemented by a webcast.

The Future of Law Has Arrived

It may be instructive to bear in mind one of his last quotes by William Gibson: “The future has arrived, it is just not evenly distributed yet.” And while his research has a distinct European and American flavour to it, it is not really a big stretch to expect Canadian firms will soon be forced to dance to the same tune.  And with the March 19, 2010 adoption by the Canadian law societies of its National Mobility Agreement, the implication is quite clear: the changes that the big national firms (even if they are mostly in Ontario) will adopt in order to remain globally competitive will affect even those who practice in the many rural towns in BC.

He is optimistic about the future of law and how it will improve access to justice and encouraged his audience: “The future is very much in your own hands." In the next 3 to 6 years, the smart law firms will create new innovative ways to serve its clients that will spread like wildfire. From the global legal market, Canada cannot avoid ignoring this development.

He will be back again in the Fall to continue his lectures. The members of the profession should take the next few months to discuss his ideas with their colleagues, or at the very least reflect on how some of his predictions may affect how they practice.

At precisely 4 PM last April 22, 2010, Dean of Law Donna Greschner convened a group of academics and members of the legal profession at the University of Victoria for a special 2 hour lecture by Dr. Richard Susskind entitled: "What Storms are Brewing for Lawyers - and What Happens if Lawyers Don't Anticipate and Respond?". She described the far reaching breadth of Susskind’s work, where for the last few years, he has gone around the world to talk about how lawyers must take advantage of the developments in technology and social trends in order for them to stay relevant.

His lectures are sponsored by the University of Victoria’s Faculty of Law, the Faculty of Social Sciences, the Legal Services Branch of the Ministry of Attorney General, the Canadian Bar Association (BC Branch) and UVic's Technology and Society.

In that afternoon’s lecture, Susskind shared some of his views based on his current book “The End of Lawyers?. Before going into the details, the futurist set out to try and define what the raison d’etre of lawyers ought to be, the market for legal services, the move to commoditization of legal services, how technology impacts the profession, and what these should mean to lawyers.

Turning knowledge for the benefit of our clients

He immediately set about to challenge the audience to ask themselves what does the market really want ... where is the value for expensive legal advice? He cited the KPMG’s mission statement as something that most law firms can adopt: “we exist to turn knowledge for the benefit of our clients.” Fundamentally, lawyers must find a way to provide access at a lower cost. From general counsel clients, they perceive value by what lawyers say to protect them. They want advice on dispute avoidance not dispute resolution. They do not want problem solving but risk management.

He then discussed the three part dilemma that major clients face. First, there is pressure to reduce their internal headcount, second they are asked to reduce their external budgets on legal services, and third, they have more legal and compliance work than ever before (and more risk). In short, clients want more for less. This is an undeniable challenge.

In the UK, the landscape is changing, with the passage of the Legal Services Act in 2007, external investors from private equity firms to supermarkets will be allowed to own and operate law firms by 2011. That is next year! The legal services market is being liberated. Canada will not be immune to these changes. One could not help but think about the possibility of seeing our local grocer doing the same thing.

On Commoditisation

Susskind claims that the legal profession will be driven by two forces in the coming decade: by a market pull towards the commoditisation of legal services, and by the pervasive development and uptake of new and disruptive legal technologies. Firms have begun to focus on providing services as efficiently as possible:  by cutting costs (borne out of the recent global economic downturn), and others are moving along the path towards commoditisation and multi-sourcing. The cost of lawyering is out of control: junior lawyers cannot charge a couple hundred dollars an hour. A lot of what they do is repetitive, and the clients know this. The solution lies in considering commoditisation where marginal costs are reduced from expensive bespoke to close-to-zero commoditised work.

“Saville Row is best known for its bespoke work, where tailors measure every undulation and every crevice of your body – bespoke legal work is like that: it is highly tailored and hand crafted legal solutions. Clients have no appetite for keeping old models. Unfortunately, this is a fiction that our law schools perpetuate.” Presently with the Federation of Law Societies leading a review for a common Canadian degree, it may be a good time to consider Susskind’s remarks.

“On the opposite end of the spectrum lies the relegation for many tasks to commoditisation: where the value of work has sunk so low we cannot make money from it anymore. While it is understandable for lawyers to feel offended, the status quo is however, unsatisfactory. It is the end of a profitable business model.

Insisting on hourly billing is like giving lawyers a blank cheque. It is time to rethink client work to see which tasks can be done in as an efficient way as possible while providing consistent quality.  Clients want lower and certainty of costs, and thirdly, the quality, surprisingly goes up because lawyers have distilled their knowledge management.”

During his presidency of the Law Society of BC, Glen Ridgway, QC plans to focus on improving Access to Justice is his number one strategic priority. Consistent with his temperament to keep things moving he declared: “The focus of our attention will be the report that Access to Justice Task Force that will contain concrete steps for the benchers’ retreat this June. I hope to see incremental improvements to the process. They may not necessarily big steps, but we are looking at the role of paralegals and the expanding use of articling students.”

February 4, 2010, Chief Justice Beverley McLachlin addressed the standing room only crowd made up of students and the members of the legal profession at the Woods Theatre at UBC. In the span of an hour, she complimented the lawyers of British Columbia who continue to get a lot of leaves from the Supreme Court of Canada because of their very creative legal culture.  Spry at 66, the chief justice reminded the audience that the Supreme Court of Canada is an institution fundamental to maintain Canadian democracy. She paraphrased the economist Adam Smith who said that for a country to be successful, you need peace, easy taxes and a tolerable system of justice. “It is now a generally accepted in our world, that a strong and independent judiciary is a pre-condition for good governance and democracy.”

An advocate for the need for Access to Justice she echoed the theme of her speech last January 2009, she laments that we do not provide access to justice as much as we should. Recognizing that there is no quick fix and that it requires an array of solutions. In the recent years, she has seen many developments: including the rise of probono work, the creation of legal hubs, the work that legal aid (despite its huge costs). But she challenged the profession including the courts, to continue to find ways to improve how they treat lay persons who represent themselves and to increase the sharing of information across Canada.

“Secondly, protecting the public’s interest is still the raison d’etre of the law society, and in order to be able to maintain the self-regulatory aspect, the review of the discipline process will be crucial. “I think that a properly functioning disciplinary process is a very tangible way we can show that we are protecting the public’s interest.”

Interestingly, much of what Chief Justice McLaclin had identified now exists in BC.

Looking ahead

Never one to forget his roots, when the subject of the future of lawyers came, he said “I come from a small community where lawyers perform more than just legal work.” Almost as a counterpoint to the evolving nature of legal work, he was quite thankful that their role will never change. Having read Susskind’s book “The End of Lawyers?”, he was quite confident that there will still be a place for the traditional lawyer. But it will be a very different kettle of fish, he wondered how the law society will go about regulating lawyers who never see their clients because their transactions take place in a digital environment. “Should the law society require lawyers to see their clients at least once?” Further, he wondered about how virtual law offices will affect how practices are going to be run. Not knowing how legal services will be provided twenty five years from now, he was quite comfortable saying “I don’t know.”

Our Obligation

Ridgway concluded by asking his colleagues, specially the ones who have just started: “to remember your responsibilities to the public, to yourself, to try to find a way to give back to the community, including to the legal community.”

Fellow bencher Bruce LeRose,QC has described him “A Man for All Seasons adding: “If you look at Glen's resume you will see that he is and has been the Volunteer Extraordinaire. Just look at his many years of service to School Board, Civic and Regional Councils.  Then add his contributions to Professional, Social, Cultural and Sporting organizations. It is men like him that make a small town a wonderful place to live in.”

January 1, 2010 marked Glen Ridgway, QC’s first day as president of the Law Society of BC. While he feels that he has had ample time to get accustomed to the schedule, the last six weeks has been busier than his last few years as a bencher.

A bencher who since 2002 has had to travel to Vancouver for meetings, Ridway downplays his being an out-of-towner: “it is not a big challenge compared to my colleagues who travel from Peace River, Prince Rupert or Prince George. It is quite easy for me, except of course during the winter time, when I resort to taking the ferry. So it does take a bit time.”

The Call of the Presidency

While one can only imagine how the presidency will affect his increased time away from home, still he readily agreed to become the president. “ I thought I could do a decent job at it. It was actually quite simple. People asked me to run and so I did.” Thus when the right time came in 2007 at the Painter’s Lodge retreat, he approached Bencher Rita Andreone to nominate him as second Vice-President. She was quite happy to oblige. In nominating him, she wrote: “Glen’s commitment to the legal profession is based on his belief that it is a privilege and an honour to be called a lawyer. To retain that privilege, Glen believes we must strive to maintain the highest standards and our independence.

But Glen is also a small-town, small-firm lawyer. He knows the reality of running a law firm and serving clients. And it is this amalgam of idealism and practicality that makes Glen not just a good lawyer, but a good Bencher as well. He brings strong principles and a lot of common sense to the Bencher table.” Andreone wrote to say: “It struck me that with his combination of legal and practical experience, his community service, his full Bencher experience and his contributions at the Bencher table, as well as his easy-going, personal style, he would serve us all well!”

His bonafides notwithstanding, then President Anna Fung, QC worked very hard in the last five minutes leading to the closing of the nominations to find someone to run against Ridgway. Fung explained that it was not because she had anything against Ridgway, she was just trying to follow Roberts’ Rules of Order. They both remember that day quite a lot of fondness.

Balancing the Practice and the Presidency

I have divided my time between my practice and my work here, like all the benchers have done, we create silos for office, personal and for the law society’s business. “Of course there are consequences to your free time, but in the years leading up to the presidency, I have had the opportunity to prepare and adjust for it.”

While there are many ups and downs to his work at the law society, he is also very appreciative of lawyers who he has files with, “they have been very accommodating and understanding of my commitment to LSBC.”

Last January 22, 2010, he presided over his first benchers’ meeting, which like any of the recent meetings had a full agenda. Aside from the presentations given by the Law Foundation of BC and the University of Victoria Law School and the Federation of Law Society Council, Ridgway facilitated over the discussions that included the accreditation of the Canadian common law degree, model Code of Conduct, and their in camera session. He managed to move from one matter to the next deftly punctuating the meeting with his signature wit and sense of humour.

Just like his predecessor Mr. Gordon Turriff, QC, Ridgway made sure that everyone who had something to say did so. “I believe in letting everyone have a say but I have a temperament to keep things moving on.” But he knew when the time came to bring the motions to a vote. And in a moment of clarity added: “For most of the decisions we make, if we make the wrong decision, they will not result in the sky falling. We live in a society that allows us a great deal of flexibility compared to other societies.”

Each Presidency is Unique

The president’s tend to select their priorities and projects exhibiting a certain amount of individuality. “Last year, to mark our 12^th anniversary, Gordon chose to go around to speak about the importance of self-governance. John Hunter, QC during his time focused on two aspects, first creating continuing professional development and second the restructuring of how projects were started. Ridgway pointed out that time had come to re-organize the decision making process so that it became a bencher directed process. The revamp reduced the number of committees. Prior to Hunter’s term, there was a lot of independent activity from benchers, which sometimes caused surprises.”

Looking at the minutes and watching the meetings, one can safely say that the bencher meetings are now more focused in being able to look at key issues in a more timely basis. “We have relied on committee work to do the work. Had John not done so, that is something I would be pushing for this year. It was important that benchers got involved early on so that there would be little surprises when issues.”

It is All About Priorities

The law society’s Strategic Plan has just been recently updated, while its plate is full, he has selected two priorities: improving access to justice and the disciplinary process.

“We have a pretty good legal system, but it can certainly stand improvement. For example, shortening the length of time it takes to complete the review of a file. Seven years is a long time to handle a complaint.”

During his nomination he went on record to say: “People asked me what my platform was going to be and I told them my platform was to do nothing. And I said that know that one could really not do nothing BUT we had done a whole bunch of things: the Wirrick case, the creation of the Trust Account Funds, CPD, the small firm task force. Then when you consider what has come up in the interim of last year: the discipline committee that decided to review the process, model code of conduct was introduced by the Federation, the change in the strategic plan to include how to attract and retain aboriginal lawyers. “It is the right time to consolidate the many initiatives we have.”

This is really about letting a hundred flowers bloom – not Chairman Mao’s style by Glen Ridgway’s style.

This post continues next month.

With his tenure about to end, he took advantage on of last opportunity to advocate for a number issues he wants the society to achieve. As we began our conversation for the second part of this interview, he cited the Winter 2009 Benchers’ Bulletin, he enumerated a long list of things he still wanted to get done. Today, he singled out three: the Federation, the separation of prosecutorial and adjudicative roles and the creation of a public education department.

Federation of Law Societies: Strength in Numbers

In his remarks in the November 13 Benchers’ meeting, he urged his colleagues to continue nurturing the Federation of Law Societies. In the remarks that he made in Australia, he described the federation as not perfect but acknowledged that they are getting better.

“I am a big supporter of the Federation of the Law Society. I believe that Canadian lawyers, as much as they can, should have a single voice that will speak on their behalf, because it will be harder for any government to challenge any law society if it has the support of all the other societies.

It will be much difficult for one government to say that one law society is doing it wrong if all fourteen jurisdictions are doing it all in the same way. It is unlikely that all law societies will get something wrong. The more that the federation can get everyone to work together in regulatory issues like credentialing, standard setting and discipline, they will be in a better position to withstand any challenge to their independence.”

But at the same time, he says that the federation is not perfect. “For it to get better, it needs more money.” Presently, every Canadian lawyer contributes only $20, whereas BC lawyers provided $166 to fund the BC Courthouse Law Library. Important as the library is, the amount it receives is over eight times more than the federation. “I say we should pay $100 per lawyer to the federation. The other law societies should do the same. With the increase funding, this will provide the federation with the wherewithal do what it needs to do to become perfect.” He believes that a stronger federation will allow it to debate and adopt key policies on matters such as whether independence and self-regulation are constitutionally mandated or a privilege. Presently, each province takes its own position on the matter thereby sending out mixed signals, which is something that ought not to happen.

Incoming president Glen Ridgway, QC agrees with Turriff: “The LSBC has supported federation fee increases fairly unanimously. However that will be determined by the activities performance of the federation going forward as it has in the past.”

“The other thing the federation must do is to sway the individual societies to give up their little things that they want to hold on to. Parochialism has to be set aside.” Turriff feels that it is more important for each of the members to consider the greater good.”

Just like recently retired Bencher Vilvang, both of them would be glad to know that the federation adopted a Model Code of Professional Conduct last January 19, 2010. The Code sets out expected standards of ethical conduct by members of the Canadian profession.

More significantly, in the January 22, 2010 Bencher’s meeting, Mr. Ian Donaldson, QC, who will be the Federation’s president in November 2011, marked his return to the world’s stage by giving an impassion plea on the importance of the federation and what it needs to do.

Open For Informed Criticism and Engagement

“The media continues to watch the work that the society does, as it should, but there have been bumpy patches recently.”

Earlier in the spring, the court banned the publication of the identities of all the parties to a case, a newspaper man accused the law society of institutional arrogance. “That astounded me because we were merely following the court’s order. We happen to think that it would have been a good thing to publish the name, but we do not have the power to do so. The court does. I wrote to the paper and I repeatedly asked them to publish my letter. They refused. That upset me because I felt that irresponsible of them. In the fall, an opportunity arose that allowed me to get an Op-Ed piece that clarified the matter. The media like everyone else needs to be educated, the challenge is that they do not always like to be. More importantly, we should not have to battle with the media to get our point of view across.

Our law society is not perfect. We are open to informed criticism. This is the only way we can address our shortcomings and to get better. We will not necessarily change things because somebody said we should, but we want to know where people think we have fallen short.” Constructively, he favours the creation of a public education department within the law society that will help not only the members of the public but the media as well. This will allow for a better engagement. The discussions should clear a lot of misconceptions and provide for a way the law society to receive helpful suggestions.”

As a natural outgrowth of his speaking tour, he hopes that his successors will support the need to get the message out there. “We will partner with other institutions like the Justice Education Society. The law society has to be out front talking about the important issues about how the legal profession in BC is run, so the people in the community can understand.”

On How to Improve Its Discipline Function

The Independence and Self-Governance Committee has on several occasions discussed the need to separate the investigative and adjudicative functions of the society, in general and the benchers, in particular. In the December 11 Benchers’ meeting the debate whether they should separate the two functions.

He favours the creation of two separate categories of benchers: prosecutorial and adjudicative. “It is important to get lawyers to handle discipline themselves; they are the bulwark between clients and the State. Getting people from the community to adjudicate is difficult because they need to be able to understand the detail of lawyers’ practices in order to make useful decisions. That said it is important to separate the two functions.”

Gaining Ground on Access to Justice

“Last fall the law bodies met, there was a general consensus that we need to make this process more efficient as there are too many bodies trying to do the same thing. Access to justice is largely a social problem, but there are quite a number of legal answers. As a next step, the law bodies will try to channel their efforts to provide more focused solutions, but one step at a time. The law society will continue to do its efforts.  The problem will not be solved, but I expect it to improve over my lifetime.

We support the use of alternative service providers who are not fully trained lawyers to do what they can appropriately do. There are some areas that need to be reserved for lawyers because it is in the interest of the public. What can be appropriately be given to others and how will they be regulated are questions that need to be answered.”

He closed by reiterating how important it is for everyone to support the idea that the law society has an important role in the administration of justice. The education of the public is critical. “They have to understand the issues before they get onside. I feel that I have accomplished what I have set out to do. I have spoken to hundreds and hundreds of people. If there is anything that I learned this year was that there is a lot of educating that needs to be done. I have just scratched the surface.” Turriff has literally walked his talk. Traveling for miles, this will be his legacy to the people not only in British Columbia but to the world: one person at a time.

For just over a year, a group of senior paralegals who form the Paralegal Litigation Users Group (PLUG) have been studying what are now the New BC Civil Rules. They have recently tendered their report in response to these rules.

Visit PLUG News on the Canadian Paralegal Institute website for the latest update on the work of this important group.


Dom Bautista presents the final PLUG report to Hon. Justice Robert Bauman, Chief Justice of the BC Supreme Court

On December 16, 2009, a number of community service providers were invited to meet with the Vancouver Justice Access Centre (VJAC) representatives met to discuss the launching of the VJAC. The meeting was chaired by Ms. Kari Boyle, the executive director of the Dispute Resolution Innovation Society and Mr. Dan VarderSluis of the Ministry of Attorney General.
 
Boyle provided the participants with a background of VJAC and
encouraged everyone to take a collaborative approach as to how each of the providers could make VJAC an effective undertaking. Unlike the Nanaimo JAC, the Legal Services Society will not be a participant in the Vancouver hub. VarderSluis advised that
the Ministry of Attorney General was hoping to get VJAC operational by May 1, 2010.
 
During the meeting, Dom Bautista, the executive
director of Canadian Paralegal Institute (CPI) unveiled its latest project called: Amici Curiae. This is a pilot project that will
coalesce paralegals and legal secretaries to render
pro-bono work at the VJAC under a lawyer’s supervision. Amici Curiae is the Latin term for friends of the court.

The meeting was also attended by Jamie Maclaren of ProBono Law and Allan Parker of Access Justice (whose institutions are in the process of being merged), Professor Sharon Sutherland of UBC Faculty of Law and CoRe Conflict Resolution Clinic, Gordon Hardy of People’s Law School, Patricia Bryne of Justice Education Society, Scott Hannah of Credit Counselling Society, and Mike Rittinger of Ministry of Attorney General’s VJAC office.

Bautista, in putting forth CPI’s proposal, stressed the point that especially for paralegals, this was the right thing to do as they too are members of the profession and that contributing to the VJAC is the perfect opportunity. “This is the right time for paralegals to step up and contribute to making justice more accessible.”

Patricia Terlecki who is part of CPI's academic team and who works at Twining & Short as a paralegal has agreed to be the first program manager.
 
It is our hope that we will be able to assist the JAC with the following tasks:

1. initiating initial intake information to ensure matters are dealt with accordingly and efficiently;
2. drafting pleadings;
3. filing documents should the need arise;
4.researching legal issues;
5. assisting in negotiating claims
6. drafting estate documents; and
7. drafting committee
applications and/or guardianship applications.

This list is by no means exhaustive and we are always open to suggestions as to how we can be of further assistance.
 
One final point, we have committed that our volunteers in litigation will be conversant with the existing and new Rules in either civil or family law.

We are also looking for volunteers who have a working knowledge in wills and estates as well as in solicitor type work.

If you would like to volunteer, please contact
Pat Terlecki by email at: pat.terlecki@canadianparalegalinstitute.com. !