President's View

Whither the Fool Hen?

Richard C. Gibbs, Q.C.

I wanted to write about Malaysia and grouse. While they are related topics, there's too much there for one column. Grouse today; Malaysia next month.

Grouse, naturalists tell us, have four main strategies to cope with danger: flying away; standing very, very still so that they won't be noticed; counter-attacking; and asserting grouse rights before any tribunal that may exercise jurisdiction.

The flying away deal, an explosion of bird, a drumming of wings, works pretty well. It copes fine for avoiding assault by dogs and children. It is reasonably effective against adults equipped with .22 rifles. It is less than 100% effective versus the shotgun.

The standing very, very still bit also works well, so long as the grouse is cognizant of his or her surroundings. It is well-suited to the conservative nature of the bird in question. It is a much more robust strategy when blending into the full foliage of trees in autumn than it is, say, when deployed against a backdrop of stark gravel road. It matters not how much the grouse perfects the standing very, very still strategy when the danger comes by gravel road; indeed, the more perfectly the grouse practises the art of standing very, very still, the less viable the strategy becomes. Topography is so nearly everything that the rest doesn't matter.

The counter-attack has some potential, but grouse are not sufficiently evolved to deploy it reliably or effectively. I sometimes see the more militant of their ilk performing their grouse martial arts out where we live: side-thrusting their stubby little calloused legs, beak sharpening, getting down and giving their Sensei five. Plucky. This is not necessarily a good thing in a militant bird.

But it's the litigious grouse that really get to me. All puffed-up and ponderous about the Universal Declaration of Grouse Rights and things they consider to be self-evident truths which, on any sober assessment, are little more than fanatical fowl droppings.

My point, of course, is that some strategies are sound for most occasions ordinarily faced. Some strategies are sometimes sound, but at other times disastrous. And some strategies are just fanciful. We need to know the topography. We also need to know whether we are grouse. I don't purport to state any of this as Law Society policy, nor to have answers; but if you want questions, I've got some beauts.

If lawyers think they can stand stock still, insisting that they are still surrounded by the abundant foliage of a monopoly on the delivery of paid legal services, then I say we are gravelled grouse. A more robust strategy would be to accept that lawyers will shortly be in competition with differently regulated, differently educated legal service providers and that the regulated lawyer will have only the competitive advantage that his or her "brand" provides: verified credentials, good character, sound training, mentorship, a complaints and discipline mechanism, a compensation fund, compulsory insurance, and so forth. With that "brand" the regulated lawyer of the not-too-distant future will go out and compete for the public's business.

Check the Yellow Pages under Accountants. You will find Chartered Accountants, who have sought to brand themselves as the elite: "CAs are the most highly-qualified & trusted Financial & Tax Advisors in Canada" runs their Institute's blurb. You will find the CGA's who position themselves as more cuddly and affordable: "We're the Name Brand for Business in Canada." Visit the Certified Management Accountants' website and you will find them positioned as "big picture strategic thinkers." Then there are folks who I expect are completely unregulated: the "no credentials claimed" bookkeeping and accounting services, which position themselves variously ("Specializing in small business and farms," "Specializing in Forestry").

Is the public being harmed by having this competition for its accounting dollars? Do these services make mistakes that cost their clients big bucks? I'd expect so from time to time. Do the unregulated accountants and bookkeepers sometimes take the money and run? Of course. But why is there all this choice in the field of paid accountancy while there is, essentially, no choice in the field of paid legal services? Are we grouse?

What penetration do we have in the province of lawyers delivering paid legal services? There are towns of significant size with no resident lawyer. The 6,000 folks and businesses in Fort Nelson, many of them quite able to afford to pay well for legal services, have no resident lawyer and that has been true for most of the 22 years I've been delivering barrister's services up there. To what extent do lawyers penetrate traffic court? Yet we litigated to keep former police officers from defending traffic tickets for a fee. To what extent do lawyers penetrate Small Claims Court or provide WCB representation? Yet the monopoly means that paralegals cannot do that work for pay.

Can it really be in the public interest that folks either buck up for the services of someone who has gone through undergraduate training, law school, PLTC and articles or be forced into self-representation or gratuitous unqualified assistance? Isn't it about time we looked at the changing topography?

Doesn't the public interest, which the Law Society upholds and supports, demand that citizens have access to paid legal services delivered in their community by people they can afford? Isn't the real trick to balance the public's need for more, and more affordable, legal services against the public's right to protection from unscrupulous, dishonest poseurs? Are British Columbians ready to go down the road to complete deregulation of legal service providers, with caveat emptor and private redress as the only backstops? Will we see Law Society certified paralegals or notaries as classes of Law Society membership?

And, seeing as we grouse aren't going to be frozen on a field of gravel, how about solicitors selling real estate in competition with realtors?

At the beginning of my seventh year as a Bencher, what do I see as the biggest discriminator between Benchers and non-Benchers? Awareness of change. As Benchers, we enjoy a perch from which we can see that the topography is changing; changing more quickly, more profoundly and more uncontrollably than can be imagined if you're just in the trenches trying to serve your clients and make a living. What are the robust strategies that have a chance of serving lawyers and the public well? Adapt. Compete. Learn to love the gravel. But don't get your feathers ruffled.