Dean's Address

In Ontario, we found that the legal profession, on its own, was incapable of personally funding a uniform and universal access to legal services to those who could not afford it; so a partnership was formed between the legal profession and government to create the availability of legal services in Ontario on a universal basis.

In 1991, the cost of legal aid in Ontario in terms of payments to lawyers, will be more than $208 million, funded in large part by the provincial government, although the provincial legal profession under writes all of the administrative costs, approximately $ 11 million each year, and 50% of the interest earned in lawyers trust accounts, pay about half of the $208 million. In return for the professions' contribution, the profession is permitted to run, totally, the legal aid system, a situation which our profession believes is preferable to any form of government control or operation.

Legal aid rates, for those who are interested, range in the area of $80 per hour; every citizen in Ontario who cannot afford to pay is entitled to legal aid in all criminal matters. In civil matters, the entitlement also exists in all instances. After a brief review, the legal aid system decides if the issue is worth litigating. A generous means test determines either total or partial entitlement in both civil and criminal cases.

It's a system that works as well as any partnership with government can. And while, as in most initiatives on the part of our profession, the Law Society probably doesn't receive the credit it deserves for the contributions the profession makes to legal aid, we believe it is an essential human right to have access to competent legal counsel, a right which we defend vigorously. Each citizen has the right to choose any lawyer he or she wishes, and up until now, we had no trouble finding large numbers of competent lawyers willing and able to do the very large volume of legal aid work.

In Ontario, we want to extend the legal aid system even further if we can. We see it as an enormous challenge for the Law Society to develop plans to bring legal services to particular groups like immigrant, native populations and to distant or isolated groups and individuals.

We have also attempted to expand our public legal services to include provision of clinics which can offer a wide range of services that involve minor matters such as landlord and tenant disputes, minor family matters, immigration problems and help in obtaining access to social assistance programs. We have also initiated a Dial‑A‑Law program, a 1‑800 telephone number which the public can access from anywhere in the province free of charge to obtain information on simple legal matters such as how to find a lawyer, or how to deal with wills, real estate transactions, civil claims, landlord/tenant disputes and many others.

I believe that the legal profession in all jurisdictions will be judged by the quality and the capacity of legal services it can provide to those who are unable to afford it.

And in the area of provision of services, I believe the legal community has to accept a great deal of responsibility for the rise of paralegal services. In Ontario at least, the growth of paralegals can be directly attributed to the high costs of professional legal services for minor matters. Let's face it ‑ paralegals are here to stay. Initially, the profession's attitude was to ensure the monopoly enjoyed by the profession by prosecuting paralegals for undertaking legal work of any kind. That simply was not the answer.

The truth of the matter is that the rise of paralegals and their contributions to the legal system came about because lawyers ultimately were incapable of providing services to the public at prices the public should, or could, afford.

But we do have to face the problems associated with the transfer to paralegals of significant amount of legal work not provided by lawyers (or not provided at all). That has posed a problem both for the public, because of our basic belief that everyone has the right to competent legal representation, and for the profession, because of its duty to ensure that high standards are maintained.

The rise was, and is, inevitable, and in the final analysis, it is probably a good thing in that it addresses a gap in our provision of legal services. The most important message that we have to get across is the fact that this is a self‑governing profession, which imposes an obligation that demands great self‑discipline and responsibility to the public. We have other self‑governing professions, doctors, dentists, and others, and with the legal profession leading the way, we have taken strides to open our disciplinary hearings to the public.

For too long, the legal professional in Ontario, and I suspect elsewhere, permitted its proceeding to hide behind the cloak of secrecy. That, of course, fostered the assumption that fair and equitable recourse to justice for complaints against lawyers within Ontario was unavailable to the public. We were perceived, as is the medical profession, as an elitist Old Boys' club, protecting ourselves from accusations, and sweeping indiscretions by our members under the carpet. That may have been true many years ago; it is not the case today.

We are not required by law to conduct our disciplinary hearings in public. However, we have chosen to become more public, to let the public in on our decisions and the reasons for those decisions. In the last two or three years, we in Ontario have forced ourselves to throw open our doors to the public.

We also believe that we are morally obligated to make certain that the public is directly involved in the decision making process in order to communicate a clear and unbiased message: Not all complaints by the public are justified; and many lawyers are not above reproach.

We have accomplished this by involving directly high‑profile citizens in the process with the appointment of lay persons, who comprise 10 percent of the governing disciplinary body, and by allowing the public to attend disciplinary hearings. We have recently imposed upon ourselves the obligation of giving written reasons in every case where a complaint is not laid.

We believe these are fundamental requirements if we are ever going to convince the public that the legal profession is conducting itself in a reasonable and accountable manner. And that lay participation should extend to all legal governing bodies, and not simply be seen as a token measure of appeasement. I believe that this must be the root of our efforts to improve public perceptions and to remove the outdated and shrouded practice of making decisions behind closed doors.

Openness and accountability are perhaps the hallmarks of the latter half of this century. Governments in North America, and in particular, once‑secret regimes throughout the world, are learning only too well the dire consequences of clandestine and covert actions. Communication today is virtually instantaneous. We only have to look at the coverage of the Middle East war to realize that. And professional associations who naively hope to continue to shield their members behind closed doors should know that the public will not tolerate such conduct much longer.

Openness of discipline procedures and hearings is one matter; equally significant is the area of compensation of the victims of lawyers. The more highly developed and responsive the disciplinary procedure is, the more responsible the legal profession must be to ensure fair compensation to its victims. The legal profession must respond swiftly and openly to the question of compensation in order to maintain not only a perception of fairness but also one of competence and speed.

In Ontario, the Law Society of Upper Canada recently set up a $100,000 annual fund for a pilot project that allows the complaints tribunal to settle legitimate claims against our members by clients who have complaints which are either very small or are not worthy of formal disciplinary or large compensation procedures. In this way, small, legitimate claims are dealt with on the spot.

In respect of errors and omissions, the profession must accept the responsibility to respond quickly and efficiently to compensate the public for the errors and omissions of all lawyers, without reference to the willingness or capacity of the negligent lawyers to respond. That responsibility, because of its nature, cannot be voluntary. It must be imposed by the governing bodies of each jurisdiction.

Nor is it sufficient to provide token coverage with respect to losses suffered by citizens because of lawyers. In Ontario, it is the aim of the Law Society of Upper Canada to reach the stage where lawyers are provided unlimited coverage with respect to errors and omissions and unlimited payment of claims to those who have been defrauded or embezzled.

Over a period of 10 years in Ontario, we have gradually raised the compulsory errors and omissions coverage from $50,000 to the sum of $1 million per incident. We know that responsible lawyers provide their clients with protection in excess of the compulsory coverage.

Higher coverage requirements not only provide the public with a sense of security, they also provide the Law Society with the impetus to raise the level of education and competence among members to avoid having to deal with claims in the first place. It is amazing how the size of compensation and errors and omissions coverages galvanizes the Law Society into action in terms of continuing legal education, spot audits and response to complaints. It seems that the higher the coverages get, the stronger the response to control claims. The compensation fund for fraud, embezzlement and theft in Ontario, fully paid for by the profession, now provides $ 100,000 coverage per claimant and $1 million per lawyer per incident.

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