Richard C. Gibbs, QC
The Enemee at the Gates
A member wrote to me recently, reminding me that, when he was called to the Bar in 1837, the Law Society of British Columbia had but two staff members: the Secretary, Scooter, who was then a six-year-old boy, and Scooter's invariable companion, a doddering blind beagle named "Dodo."
He recalled how Scooter was orphaned shortly after birth and abandoned in a basket before the front door of the Law Society's old building. As there was no one to take him in, Scooter survived the first years of his life wandering the corridors of the Law Society, nourished only by the paste he licked from the back of law stamps. Dodo, too, was abandoned - cast off from some downsizing at the Law Reform Commission of the day.
Boy and beagle, they tackled the issues then confronting the profession. The annual dues of the time were only a ha'penny every five years, and the excess was routinely transferred to a contingency reserve fund. When a complaint about a lawyer was received, a quiet word from the Secretary was all it usually took to put matters right.A gentle "Hey, Mister, your file's undone" from Scooter let the member know that improvement was required. There was no formal discipline or practice review process. In egregious cases, Scooter and Dodo would visit the member's office. Dodo would cock his leg at the door and that was a real stain of dishonour for proud professionals. Not like the Law Society of today.
As with the rest of you, I've grown up on the tales of Scooter and Dodo and the early days of the Law Society of British Columbia. And, frankly, I'm skeptical. For instance, I don't think they had law stamps in British Columbia in the 1830s. I'm beginning to see these as apocryphal tales . or a pocket full of something. No matter how we may long for a discipline process defined by the retentive capacity of a blind beagle, the fact is that times changed and the Law Society had to change with them.
When I ran for Bencher in 1995, my major prior experiences with the Law Society came from acting for members caught up in its processes. I can remember railing against what I perceived to be the unfairness of the complaints review process. (This is the process by which a complainant can ask for an independent review of a staff decision to take "no further action" on a complaint.) I was concerned that a complainant could be given a 40-minute audience before a panel of three to press his or her indictment of the member, yet the member was neither allowed to attend in person nor to send counsel. I can also remember my frustration at the conduct review process. While Law Society counsel of the day saw it as a way to effectively address certain conduct issues, I saw conduct reviews as an alternative to what should have been nice, clean "not guilty" dispositions of complaints. I went to the Law Society, as a newly elected Bencher, with an attitude of substantial hostility to what I would find there. My unofficial campaign slogan had been: "Let's give the Law Society an enema!"
In the seven years that have intervened, I have acquired a good working knowledge of the departments of the Law Society and am now at least acquainted with most of the 125 employees who work there. It is my thesis that every one of our staff positions is essential to the proper functioning of the Law Society and, in fact, we need to staff up to properly deal with some issues that are central to our mandate and presently inadequately serviced. A satisfactory demonstration of that contention is beyond the scope of this column.
Members who compare present staffing to that of the "good old days," or make ratios of staff to number of members then and now, are using arithmetic as a substitute for analysis. In 1992 we increased staff by bringing our liability insurance program in-house. Su Forbes and her colleagues in the Lawyers Insurance Fund have been externally evaluated as running the best liability insurance program in North America. Liability insurance in British Columbia costs full-time members $1,500 per year - in Alberta, comparable insurance costs $2,574; in Ontario it is $2,700. The insurance program adds 16 employees to the Law Society. Every one of them is justified.
The public complains about lawyers as never before. In the "good old days," one staff member may have been assigned a workload of 800 or 1,200 complaints. Little could be done with such a load. If the Benchers and staff had not responded by ramping up the capacity to properly investigate and assess complaints, our Law Society might have found itself in the situation of the Queensland Law Society after Queensland's Ombudsman, Jack Nimmo, recommended that the government take away the self-governing status of the legal profession based on his view of their complaints process. [Those who favour gutting our Professional Conduct Department may wish to check the December 5, 2002 editorial in the Queensland Courier-Mail for an example of the kind of public hot water that can be encountered and the challenges to independence and self-regulation that could result. Or try a Google search for "Queensland Nimmo Complaints" and review the hits.]
Our Law Society now processes about 1,700 complaints per year by a staff of 8.5 full-time equivalent lawyers plus a legal assistant and a complaints officer. We provide a complaints review process chaired by a Lay Bencher, and we pay for staff support to that process. No one can justly criticize the Law Society of British Columbia for failing to thoroughly investigate and assess each complaint we receive. There are also two full-time discipline counsel in house who take forward discipline cases.
We also now deliver our Professional Legal Training Course in-house. That involves 12 employees. Our PLTC course is recognized internationally as a leader in delivering bar admission skills training and assessment.
We assist members in regaining competence through our Practice Standards employees. The beneficiaries of those programs pay some portion of the cost. A competency program is a necessary part of our public interest regulatory regime.
We have one employee who works full-time responding to Freedom of Information and Protection of Privacy Act requests, as the Law Society is subject to that legislation. Scooter and Dodo were not similarly vexed.
We have a Communications Department, which manages our website and prepares our mailings and reports to the membership. We have a Public Affairs Manager at the Law Society heading that department. The public affairs function is indispensable, as I well know from my year as President. The Law Society features in, and responds to, so many issues that it would not be possible to manage our media relations without full-time, expert staff assistance.
We have a Policy and Planning Department - with nine employees - that is much too small given the challenges laid before it. Policy and Planning routinely works on such programs as unauthorized practice, equity and diversity and pro bono, oversees Law Society litigation and policy work and monitors cases and legislation that may impact on the profession. This includes, for example, monitoring Securities Exchange Commission activities in the United States with extra-territorial implications for our members advising companies that may trade shares there. We are also now in correspondence with the federal government to consult on legislation to replace section 488.1 of the Criminal Code (searches of law offices), following the decision in Lavallee. Policy and Planning crafted submissions to the provincial government over its ill-advised civil liability review initiatives. Every day there are new challenges about which the Department has to provide the Benchers, the President and the Executive Director with research, information and analysis.
Our admissions program has to deal with 325 new applicants per year for articling accreditation and call to the Bar, in addition to handling ongoing member and public enquiries about lawyers and file disposals, certificates of authentication and standing, law corporations and administrative mailings. That now requires a staff of six. With increased lawyer mobility and other admissions reforms, it is certain that the demands on this department will rise, at least initially.
The Special Compensation Fund previously responded to claims having an average value of $348,000 per year. All claims had to be investigated and evaluated. While there was nothing to predict anything in the order of magnitude of the Wirick claims, that is a challenge we had to meet and our resources were already stretched in this area. With the Wirick claims, our lack of capacity in audits and investigations has been revealed. So far as I am concerned, we have failed over the years to budget for appropriate staffing for audits. To think that when I was elected a Bencher in 1995, I didn't even know what the Special Compensation Fund was!
We now have a staff of four that works on reviewing the errors and exceptions on the Form 47 accountant's reports. This is an area facing much- needed reforms and when the Trust Assurance Reform Task Force finishes its work, it is a certainty that some more resources will be needed to analyze the results of these reviews.
With the complexity of law and practice, our Law Society offers BC lawyers the services of practice advisors who can respond to both practice and ethical enquiries from lawyers. There are three staff lawyers and an assistant to keep up with requests for assistance and to publish general advice for the benefit of the whole profession.
The Law Society has a duty to uphold and protect the public interest in the administration of justice by preserving and protecting the rights and freedoms of all persons, ensuring the independence, integrity and honour of its members, establishing standards for the education, professional responsibility and competence of its members and applicants for membership, regulating the practice of law and upholding and protecting the interests of its members. This is a broad and complex mandate that requires a sophisticated professional organization with adequate staffing and resources.
Our Law Society's recent accomplishments in initiating the Proceeds of Crime (Money Laundering) and Terrorist Financing Act litigation; enhancing the mobility of lawyers across Canada through the Western Protocol and the National Mobility Agreement; establishing trusted digital certificate credentials for lawyers through Juricert; developing electronic filing projects; enhancing our bar admission program; promoting lawyer use of technology through the Pacific Legal Technology Conference and undertaking a host of other projects should reassure members and the public that the Law Society continues to do us proud.
We are fortunate that we have such a dedicated group of men and women as grace the Law Society in performing those functions. I have never worked with a finer or more dedicated crew than I have encountered here at the Law Society. Considering that our combined insurance, Special Compensation Fund and practice fees are among the lowest in Canada - ranked sixth lowest of 15 in 2001/2002 (10 provinces, three territories, and the Notaires in Quebec) - it will be apparent to any fair-minded person that we are getting good value for money in the fees we pay.
I know there will continue to be skeptics who see the Law Society as bloated, costly and out of control. I categorically disagree. My conclusion, after careful study and due deliberation, is that the member called in 1837 is the true enemee.
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Being President of the Law Society in 2002 has been a wonderful, challenging experience. I'd like to record my thanks to the voters in my county who permitted me to become a Bencher seven years ago. I am grateful that in 1999 my colleagues at the Benchers' table put me forward as their nominee to mount the first rung of the Presidential ladder.
Most importantly, though, I wish to publicly acknowledge the sacrifices made by my wife, Barbara, and my children Leopold (18), Marynia (17), Jozef (16), Halina (14), Teresa (13) and Jan (11), to permit me to participate in the governance of the profession. They gave up a lot, and they mostly didn't grouse.