Deadbeat judges worse than greedy lawyers

Thursday, April 2, 1998

The Ottawa Citizen

 Deadbeat judges worse than greedy lawyers


With all due respect, Mr. Justice Frank Iacobucci, I think Your Honour may have been sitting too long on the bench at the Supreme Court of Canada, and consequently lost touch with frontline lawyers.  

The hard truth, sir, is that far from being greedy, as you so eloquently allege lawyers are in the Citizen's Mar. 30 Page 1 article ("Judge scolds greedy lawyers"), many in the trenches are having a hard time making ends meet. Others, I dare point out, are choosing not to practise at all or quitting before they go bankrupt.

 Granted, the concept of greedy lawyers reflects widespread public opinion that blames the legal profession for all society’s problems. If you think I'm exaggerating, just remember the only joke absolutely everyone knows is the one about a single lawyer at the bottom of the sea being a good start.)

 Your Honour's public rebuke does nothing to dispel this popular and harmful misconception. Like all specia1ists, 1awyers must charge for their specialized services, at least enough to pay their office and home expenses, and to put a little away for retirement, What amount they should charge or receive obviously depends, as does every dollar not paid out of govern­ment coffers, on the market, and on how tenacious clients are in pursuing sometimes ridiculous claims.

 Certainly, some lawyers - like some accountants, dry cleaners, and, I dare say, even some judges - are greedy, But surely this is the exception.

 May I turn Your Honour's attention to Canadian Lawyer's 1997 National Compensation Survey? Since Your Honour understandably has no time to read such mundane periodicals, please allow me to summarize.

Accordingly the survey, there has been - among both sole practitioners and law firms in Canada - a “decided drop in annual targets for billable hours," a fee mechanism which Your Honour clearly denounces in the Citi­zen article. The survey found that, while annual goals over the last decade saw some lawyers aiming for 2,000 or more billable hours, last year's average target was a mere 1,600 hours for both associates and partners.

 The survey also notes, among many other recent alterations, the growing trend toward paying junior lawyers according to fees collected rather than fees billed. This glaring payment change only serves to spotlight the increasingly rough time lawyers are fac­ing in collecting owed money once the legal work is done.  

Your Honour's noble suggestion­ - that lawyers redefine their ideas of success, values and goals to emphasize their role in the service of clients and society - would surely be leapt at by all in the profession if they weren't already almost unanimously following the idea.

This is not to imply that Your Honour's recommendation is trite, only that Your Honour has probably forgotten the way overworked bar admission students must dedicate many more hours to studying the Law Society's enforceable Professional Conduct Handbook than to learning how to set up business accounts.  

And, in case lawyers forget their legal/ethical obligations, the Law Society reminds them every two months in its Gazettes which list all disciplined colleagues' cases, the most s­vere of which end in suspension or disbarment for mishandling funds.  

Though I have very limited experience in the legal jungle, I have never interviewed, worked with or worked against a lawyer who wasn't totally devoted to his or her client, even after that client has stopped paying, and even when that client is a desperate but stupid and proven liar. 

Your Honour, who surely at one time practised law on the bottom rung, must admit lawyers perform the hardest mental and verbal tasks imaginable, from researching complicated ancient British cases to articulating the most minute and seemingly most insignificant details to obviously bored judges.  

Which brings me to my final point. I hope Your Honour won't think I am too impolite for pointing out that the real problem lies with, to borrow a term coined by Citizen columnist Dave Brown, “deadbeat judges."  

That's right, the biggest snag in the system lies in detached, insulated, salaried provincial court judges who are not in any overt way encouraged to think hard about the interim motions they rule on. Unlike practicing lawyers, whose remuneration ultimately depends on job performance, judges are not the least bit accountable to the plebeians who foolishly trust them to make fair judgments.  

Even when they make obvious and egregious legal mistakes, judges simply retire to their chambers where they remain completely protected from the expensive and painful fallout.  

A case in point. When a dear friend of mine could no longer afford a lawyer, I helped prepare a motion to be argued in front of a judge in order for the friend to receive long-owed child support. (In fact, this friend was in court without a lawyer to correct an earlier judge's error, which itself was compounded by a later judge's error. But I digress.)  

Despite a flawless and brilliant presentation by my friend, the annoyed judge dismissed the motion for an invalid reason. Though a statute was ignored, the only recourse, we were told by the judge's secretary, was to hire a lawyer and appeal the decision.  

Clearly, judges alone possess the opportunity to nip many unfounded cases in the proverbial bud before they take off into endless, meaningless, and unconscionably expensive ordeals, during which everyone - except the judges - gets exhausted by the time the money does.

Lynne Cohen is a Nepean writer and non-practising lawyer.