Dean's Address

Lawyers under fire

By Kenneth F.Howie

In 1987, our colleague and now President, Aaron Podhurst began his address with the statements: "I am a lucky man. I like what I do. I am proud to be a lawyer."

I concur with Aaron wholeheartedly, as I am certain you do. But four years later, it is my unenviable lot to report that nobody else is proud of us.

Lawyers in the 1990's are under attack as never before. The role as society's whipping boy is something lawyers have come to accept. Taking it out on lawyers is not a new thing. We all know that. But our critics today are more vocal, and in many instances, more malevolent in their denigration of our profession. I quote:

"Lawyers certainly deserve all the criticism they can get. Those are universally held feelings by everyone who has ever dealt with the legal establishment Everyone ought to take every opportunity to blast lawyers. It's so easy to bash lawyers."

As you may well remember, those comments came from none other than White House Press Secretary Marlin Fitzwater. The statements made the national news because of the high profile of the source. But like it or not, there is some truth to Fitzwater's statements. Those feelings are broadly held. And we, who so often spend our fives defending others, do little or nothing to defend ourselves.

Fitzwater's is an attitude that the legal profession must confront on an almost daily basis. The mistrust by the public, the notion that lawyers are little better than the unscrupulous shysters portrayed in the Perils of Pauline movies, and belief that the legal profession is more interested in the pursuit of financial gain that in the pursuit of justice are practically the norm; those attitudes have never been the exception.

We can see the evidence everywhere. One American magazine recently rated lawyers in the company of used car salesmen and investment bankers as the most untrustworthy professionals. And one California company has introduced Gummy Lawyers ‑ a candy in the shape of a shark. Not a flattering picture.

It seems today, perhaps more than ever, the legal profession is under attack from all sides. Unfortunately, in many respects we have to accept the lion's share of the blame. It is the fault of the legal profession itself that it has not done enough to bridge the gap between the perception of an elitist, self‑serving profession and the reality that we know exists. The result of this continuing perception is that there has been a steadily deteriorating loss of public trust and of public confidence, not only in the legal profession but also in the legal system as a whole. I think you will agree that our hides are tough enough to withstand the arrows directed at us personally or even to our profession. But the threat to our system of justice is a dangerous and sinister assault on the very foundation of our system of democracy.

In the United States, Canada and in many other parts of the world, growing misconception is continually fed by media reports of such things as unconscionable settlements for what often appear to be insignificant or pointless legal claims and lawyers are cast squarely in the role of scapegoat.

In malpractice suits, for example, the failure of the physician to provide proper medical treatment is usually relegated to the end of the media report, if at all. The fact that the lawyer has proved the case and won a significant judgment or settlement for the client is seen as somehow gouging the system. And the medical profession has been extremely successful in its own public relations efforts, shrewdly convincing the public that the root of the skyrocketing medical costs and the occasional inability of physicians to perform their duties competently mysteriously lies directly at the feet of the legal profession. They have turned the issues of medical professional accountability, medical malpractice and rising medical fees inside out to the point where if a physician removes a spleen instead of an appendix, it is somehow our fault; if the cost of a blood test rises by 300 percent, it's because of the settlements the doctors or their insurers have to pay to lawyers. And make no mistake, that is "paid to the lawyers" not to the victims.

Another contributor to this perception is that in many other parts of the world, access to competent legal representation is, in many cases, limited to the wealthy few, and indeed, given the rising costs of legal representation in North America, that situation is on the rise here as well.

Many of us who attended the Mexico City annual meeting were treated to the incredible reality that in that city, the lawyers available to serve the public could hardly handle one tenth of the legal work. Nine tenths of population absolutely could not obtain access to legal services. This is a situation repeated in many countries in the world.

In North America, we are often told that there are too many lawyers. To our critics, I assume one lawyer is too many. But the fact remains that even here and despite our best efforts, sound legal representation is often inaccessible, particularly because of financial restrictions.

Before I come across as being the most vocal critic of the legal profession, I want to say that in many ways, I believe the legal profession is stuck between a rock and a hard place. We are expected to provide representation for the world, but if we attempt to defend ourselves, we become the suspects.

Certainly it is time for the legal profession to stand up and make the world take notice of, and listen to the realities that we know exist within our profession. It is time lawyers, themselves, work to humanize and to demystify the legal profession and to lay to rest ‑ or at least quiet the critics. Inactivity on our part will only foster greater contempt for the profession, in general, and for the legal system as a whole.

In short, it's time to blow our own horn.

We have failed to blow our own horn by ensuring that the public is not aware of what is really going on in the legal profession. We have failed to communicate the strides our profession has made on its own to deal with matters such as accountability, discipline, professional standards, compensation and errors and omissions. We have failed to make clear to the public and to the media the issues that we are facing and the steps we are taking to address those issues. We have failed to respond effectively to the unfavourable media reports that bombard our profession.

As you may remember, Mr. Fitzwater's comments were made last February and because they were reported at the time of our 1990 annual meeting, the executive met and a written response to his statement was immediately prepared. But as a glaring example of how we are failing to get our message across, I'm not certain what ultimately happened to the text of our position. I know that the media is far less interested in the defense position of the legal profession than it is in the unfounded ramblings of a White House Press Secretary, but we have to accept at least part of the guilt for not forcing the media to stand up and take notice.

I would like to take a few minutes to blow our own horn. I want to share with you some of the efforts that we are making in the Province of Ontario to try to counter these kinds of attacks and to take our message to the public.

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