President's View

A few things I've been meaning to tell you

Ralston S. Alexander , QCRalston S. Alexander , QC

By the time this gets to your desk, my term as your President will be done. The year has passed with incredible speed and, in many ways, it seems like a year is not a long enough term in which to get it all done. It has been a terrific year for me, and many of the goals and objectives that I set for myself at the beginning of the year have in fact been accomplished.

I particularly enjoyed the times I spent in meetings with county bar associations. The frank and free exchange of views and information allowed me to develop a greater understanding of the membership’s take on the issues and initiatives of concern. I see it as an important component of the work of the President to get out and to meet the members on their home turf. I encourage my successors to make every effort to attend county bars when asked — the paybacks are significant.

I must express my considerable appreciation for the amazing help and support that I have received from both the Benchers and the staff of the Law Society. The Benchers have worked tirelessly in pursuing the objectives I wished them to adopt. As I indicated in my initial column in February, the Benchers are the most dedicated, hard-working group of volunteers with whom I have ever had the pleasure to work. During this year, the Law Society staff, with strong leadership from our new CEO, Tim McGee, have moved mountains to deliver on projects and promises that were identified by the Benchers for their attention.

A new trust assurance program has been planned, to bring a fresh and significantly superior approach to the fulfilment of our fiduciary duties in management of trust funds. Watch for details on this program in early 2006 and a full roll-out in 2007. Under that trust assurance regime, we will be doing things differently — and more efficiently and effectively. I am proud to have played a small part in setting that new direction and in finding an appropriate and equitable method for financing the new initiatives.

There are some tasks undone. I will highlight a few here, with the hope that my successors will make some room on their agenda for these important concerns.

The decision by the Benchers of the day (circa 1992) to reduce the term limits for Benchers from the traditional six terms (12 years) to four terms (eight years) went too far. It is probable that 12 years was too long for all but the most dedicated, and there were strong pressures at the time both to reduce the time necessary to qualify as a Life Bencher and to ensure turnover at the Benchers table. However, some unintended consequences of the eight-year solution have emerged. The group of Benchers sitting in January of 2006 will have, on average, slightly more than two years experience in the job. With respect, that is not nearly enough. A broad consensus exists among Benchers that, to be most effective in their role, there is generally a learning curve and settling-in period of a couple of years. As a result, I am of the view that we will greatly enhance our effectiveness as Benchers if we extend the permitted number of terms of office to take better advantage of the clear benefits that experience brings.

Another unintended outcome is that, because Benchers now typically move onto the President’s ladder earlier, some Presidents are only serving a total of seven years before their mandatory retirement as provided in the Law Society Rules. This has the effect of removing from the table some of the most senior Benchers earlier than is thought to be appropriate — at least in some cases. Allowing longer terms would allow those Benchers seeking the “ladder” some additional time at the Benchers table before making that commitment.

In 2003 the Benchers sought, by referendum, the approval of the membership to expand the maximum service to 10 years (five terms of two years each). For reasons that are not at all clear, that initiative was approved by only a narrow majority of lawyers and failed to achieve the necessary two- thirds approval for a rule change. I encourage the Benchers to consider the issue anew and, if it becomes the subject of a new referendum vote, I urge the entire membership to be supportive of the proposed expansion. We have discussed three x three-year terms (nine years total) or alternatively a reconsideration of an additional two-year term for a total of five terms (10 years total).

Another issue that requires some work is the matter of “best practices” in the real estate work that lawyers do. The Conveyancing Practices Task Force, under the leadership of Bencher David Zacks, QC, will shortly be soliciting your feedback on this important subject.

I’ll say upfront that lawyers could risk losing, out of sheer neglect, the privilege of looking after our clients in their real property transactions. This is because of the growing and dangerous trend to minimize the work that is done on their behalf. The reasons are complex, but include cost (profitability) considerations, large volume practices, fixed fees that include all disbursements and taxes and other competitive marketplace considerations.

There is now almost irresistible pressure to cut corners in real estate practice today. Like all such things, this is not a problem — until it’s a problem. But if a client loses an interest in property or the intended use of property, it can become a very big problem, very quickly. The public interest in low-cost conveyancing fees must be balanced against quality of outcome.

A lawyer who fails to allocate time for actual legal work becomes little more than a witness to the execution of documents. Yet our responsibility as lawyers is to consider the legal consequences for our clients of each contemplated transaction, including a proper review of the state of title and the existing encumbrances. If you are not charging enough to spend the time to handle the transaction carefully and properly, you are doing a disservice to your clients.

I am most disturbed to hear of lawyers who apparently think it is appropriate to give a client the opportunity to purchase a property without an examination of the charges registered on title. My understanding is that such lawyers actually tell a client in support of this approach that it “usually doesn’t matter.” No client could come to an informed decision this way, and this is not reflective of the professional approach demanded of our members.

Some Benchers are of the view that lawyers ought not to be doing real estate work at all if we are not able to do it properly and professionally. It is an easy argument to develop and to sell. Unless lawyers in real estate practice respond quickly and appropriately, we will lose that argument and, by default, risk our entitlement to continued participation in the field.

In closing this (my last) column, I’ll repeat what I have said elsewhere — that the presidency of the Law Society is the best volunteer job in the province. I mean that sincerely and I have been honoured to serve you in that role. I now wish all the best to your new President, Rob McDiarmid, QC, and his Vice-Presidents Anna Fung, QC and John Hunter, QC as they take up their responsibilities in 2006.