Lawyers weigh in on CBA fee debate at AGM

The September 20 AGM was not without controversy, as lawyers took up a debate over mandatory payment of the CBA fee equivalent as a condition of Law Society membership. Lawyers at the meeting voted down a motion that would have removed the CBA fee equivalent component from the 2003 practice fee.

After a long, thought-provoking debate on the pros and cons of universal or mandatory membership in the Canadian Bar Association, a majority of lawyers attending the Law Society Annual Meeting on September 20 approved a Law Society 2003 practice fee that will include an amount equivalent to the CBA membership fee. Lawyers defeated (332:178) a motion put forward by Gail Davidson and Anthony Vecchio of Vancouver to amend the practice fee resolution by removing the CBA fee equivalent.

The meeting accordingly approved the Benchers' recommendation of a 2003 practice fee of $1,538.94 (for lawyers in practice five years or more) and $1,369.94 (for lawyers called less than five years).

Lawyers also gave the nod to a motion submitted by Eric Rice, QC of Richmond and John Waddell, QC of Victoria directing the Law Society to remit to the Canadian Bar Association the amount equivalent to the CBA fee, which is collected as part of the practice fee (the Benchers had themselves earlier resolved at their September meeting to remit the fee to the CBA). The motion also calls on the Law Society to work cooperatively with the CBA to develop a protocol to address the issue of those members of the Society who do not wish to be CBA members.

Gail Davidson of Vancouver speaks to her motion to drop the CBA fee equivalent from the practice fee for 2003. In her view, the mandatory nature of that fee had proved bad for both the CBA and the Law Society.

In speaking to her proposed amendment to drop the CBA fee, Gail Davidson emphasized that she was not against the CBA. "What I'm for is the integrity of the Law Society of British Columbia," she said. "I am for the Law Society continuing to be able to regulate the profession of law in BC. Therefore I am concerned that the Law Society conduct itself in governing the profession and in upholding its statutory duty to uphold the public interest in BC in a way that is not only above reproach, but is seen to be above reproach."

In her view, 54 years of compulsory membership had been bad for the CBA. As an example, she cited the CBA BC Branch's decision in the Spring to sign a joint statement with the Attorney General in a way that was "alarmingly dismissive" of the publicized interests of the profession. She noted that, after the members voted overwhelmingly against that agreement, "the CBA didn't apologize, they didn't rescind the agreement - they didn't have to. We have to belong to the CBA. They didn't have to respond to members' concerns."

Ms. Davidson said that, more importantly, compulsory membership was a problem for the Law Society. She noted that in June the Benchers decided to recommend a "CBA equivalent fee" as part of the practice fee. At that time they had in hand the results of a poll of members that reflected that 54% of respondents wished membership in the CBA to be voluntary, she noted. In September the Benchers resolved that the equivalent fee be remitted to the CBA.

Ms. Davidson said that, when the Benchers made these decisions, they were aware of two critical money issues affecting the public interest - severe cuts in legal aid, resulting in a total loss of legal aid for poverty law - as well as uninsured claims against the Special Compensation Fund. In her view, any amount added to the practice fee would be better applied to these needs.

She said she was not suggesting the Benchers were unable to keep the public interest ahead of allegiances to the CBA when passing these resolutions. "I am suggesting that there is a public perception that that might be the case," Ms. Davidson said. "And I'm saying that, as a member of the profession in BC, I think that's a dangerous thing. It's time that there is a clear delineation between the Law Society and the CBA, and the only way that can occur is for the Law Society to stop exercising its agency to collect fees."

Ms. Davidson said she was disappointed the CBA was vigorously lobbying for what she saw as an anachronistic practice. "If the CBA were acting in the interests of the lawyers of BC, people from the CBA would be standing where I'm standing and saying 'Let's give lawyers in BC the same right to make a choice about the professional association that they belong to that lawyers in the rest of Canada have.' "

Jim Murphy, of Nanaimo, past president of the Trial Lawyers Association, spoke against the amendment, citing as a reason for supporting the CBA the successful campaign that TLA and others waged against no-fault auto insurance. "There were many keys to winning that battle. One of the keys was that the legal fraternity was strong and spoke with one voice," he said, reminding lawyers that they faced a similar situation with the government's civil liability review. "The CBA has historically spoken for all lawyers in BC.. As a lawyer who wants to share the benefits that the CBA provides me, I think it only fair that I pay for that."

David Paul of Kamloops, President of the BC Branch of the CBA, urges lawyers to demonstrate support for the CBA to ensure a common, unified and strong voice for the profession.

David Paul, President of the BC Branch of the CBA, spoke against the proposed amendment to drop the CBA equivalent fee. "The amendment that has been proposed would effectively paralyze advocacy for BC lawyers at a time when we need the support of the CBA more than ever," he said.

Mr. Paul noted that 54 years earlier the lawyers at the Law Society AGM voted freely and democratically to establish universal membership on the premise that lawyers are best served by one unified voice, speaking out to promote the interests of BC lawyers first and foremost above any other mandate. "Universal membership was not forced on the membership from on high," he said. "Every year since 1948 the lawyers of this province have voted to continue this practice. The debates of the day in the late '40s show that the members of the profession recognized the virtues and necessity of having a common, unified and strong voice for our profession. That principle, the need for a strong and unified voice, is as pertinent today as it was then."

In the Fall of 2002 the issues had evolved. "Our profession and the justice system itself are in a great struggle on many fronts," Mr. Paul observed. "A struggle with politicians who choose to trample individual rights by denying adequate legal aid funding or access to our courts. A struggle in the Supreme Court of Canada in our Fink intervention to ensure that one of the tenets of the legal profession, solicitor-client privilege, remains in force."

"We of the legal profession must meet these challenges head on and counter them, one by one, on the field of public opinion," Mr. Paul noted. "Each and every member of the profession in BC benefits from this advocacy. The CBA is the credible voice of the profession, and when it speaks, it is heard."

He noted that public scrutiny of the professions had never been greater and it was not surprising that the Law Society emphasized its statutory responsibility to govern the legal profession in the public interest. The CBA's mandate was to represent the interests of all members of the profession. He noted that the CBA's Special General Meeting in June proved that the will of the members takes precedence and that, if they disagree with a position the CBA has taken, they can object and set policy through a democratic process.

Mr. Paul said the profession needed a strong, properly funded organization to represent lawyers' interests on big issues and that it would be unfair for some lawyers to pay while all benefit. In his view, dropping universal membership was in the exact opposite direction to where the profession should be going. "Numbers make a difference," he said. "The stronger our representation, the better our chances of success."

Among the speakers who spoke in support of the CBA, Warren Wilson, QC, a Past President of the Law Society, said "We need a strong lawyers' organization to provide the framework for lawyers to keep up with the changes to the law and practice through section and other activities, to provide quality input on legislative reform, to stand up for lawyers and to be constantly available to speak for the profession."

Cameron Ward of Vancouver spoke in favour of the amendment, noting he was in favour of the CBA, but against compulsory membership. "It baffles me that BC lawyers are still forced to join the CBA while our colleagues in Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, the Yukon, the Northwest Territories and Nunavut are all free to choose whether or not to become members," he said. "It seems to me that the CBA branches in those provinces and territories are effective and strong on behalf of their members there."

Mr. Ward said he stuck his neck out on this issue because he believed forced membership was unlawful or unconstitutional - the subject of a court case he was bringing forward in December - and because he believed the CBA would be stronger, more credible and more accountable through voluntary membership. He said the BC Branch now lacked accountability when lawyers "can't vote with our feet." He referred to the decision of the CBA executive on the eve of a no-confidence vote in the Attorney General to issue a joint statement with the Attorney General. Another issue was the $450,000 expenditure on the CBA website. He found both issues of great concern and would have resigned over them.

Following other expressions of support for the amendment by Dugald Christie and Anders Ourum, Anthony Vecchio addressed the meeting as seconder of the motion. "We are a profession that values freedom of association," he said. "We are an association that stands for the rights of an individual. We are a profession that embraces and stands for democracy. As lawyers we must be mindful that we are at the forefront of the democratic society in which we exist. We set the example for the community at large. Isn't it ironic that we are here today to vote on a resolution to force members of the Law Society to be mandatory members of the CBA in order to practise law?"

He noted that, as a result of compulsory membership, BC lawyers provide over 25% of CBA National revenues, which was a disproportionate share, and he questioned the impact on lawyers who can't afford that expense.

He acknowledged the tremendous respect he had for the leadership of the CBA and their work. "We know the CBA is a good organization. They do good work; they're deserving of praise. Let's be clear: this vote is essentially about protecting the right of freedom of association, the individual right of choice. It's about democracy."

Vancouver lawyer Sandra Jakab-Hancock told the meeting she is deeply involved in CBA work, yet did not find the issue easy. Hailing from Alberta, she said she has had many of the same thoughts as Mr. Vecchio. She said she was persuaded to vote against the amendment, and for the practice fee resolution recommended by the Benchers, for the simple and practical reason that it would be imprudent to make such a change, effectively devastating the CBA, without any provision for transition. Her second reason was more substantial. She said she asked herself why the Benchers for 54 years had recommended the CBA fee as part of the practice fee.

"I don't think that it's simply out of courtesy or out of an obeisance to tradition," Ms. Jakab-Hancock said. "What I think is that the Law Society is better able to deliver its mandate to protect the public interest by ensuring that we are competent and ethical lawyers through the work of the CBA, through the section memberships . through the advocacy work that we can do for the greater good and through the opportunity to develop fully as professionals by participating in the volunteer work of the organization."

Westminster Bencher Peter J. Keighley, QC adds a light note to serious discussion at the Vancouver site of the AGM. On recommendation by the Benchers, Mr. Keighley was elected Second Vice-President for 2003 by lawyers at the meeting.

After lawyers at the meeting passed a practice fee that included the CBA equivalent fee, Cameron Ward and Lloyd Duhaime introduced a motion to call on the Law Society to conduct a referendum of all members on whether payment of the CBA fee should be voluntary. The second part of their proposed motion read "If a majority of members answer the said question in the affirmative, that the Law Society cease its practice of making payment of the Canadian Bar Association fee a condition of practising law in the Province of British Columbia." (emphasis added) Mr. Duhaime asked that this second part of the motion be amended by changing the word "members" to "respondents." When this amendment was ruled out of order, Mr. Duhaime and Mr. Ward opted to withdraw their motion.