Knowledge — it's what proves our value in times of change
Richard S. Margetts, Q.C.
I have said on many occasions, and once or twice in this column, that our profession faces daunting change. I propose to address the subject once again — but this time not to explore limited liability partnerships, multi-disciplinary practice or other current issues — but to focus on our greatest asset: knowledge.
What distinguishes lawyers from the clients we serve is our knowledge of the law. The practice of law is in many respects simply the application of legal principles, in conjunction with the exercise of common sense, with a view to the resolution of a particular problem.
I believe it fair to say most members of our profession are well imbued with common sense and, until recently, have been the primary conveyors of legal knowledge and advice. A variety of factors have emerged over the past few years that have had the effect of significantly eroding the traditional domain of the lawyer. These factors include the development of administrative processes, the increased complexity and cost of the traditional judicial approach to dispute resolution, the increased cost of legal services and the increased availability of legal information for the prospective litigant through social agencies and, more recently, web-based resources. This list of factors contributing to the change is far from exhaustive, and continues to expand as the marketplace develops.
How are we to respond? The answer, in my mind, is for us to identify what value it is that a lawyer brings to a transaction and to develop and promote our attributes ahead of the marketplace. Foremost among the skills that a lawyer has acquired through his or her studies is a sound knowledge of the law. Knowledge is, for want of a better way of putting it, the basic tool of the lawyer's trade. It is time to take a close look at knowledge — both in how we obtain it and how we market it.
This involves at least two aspects. We must publicly display our expertise. This means a variety of things, ranging from members of the profession being active at a community level to the liberalization of marketing rules. Another way for us to do this as a profession is to embrace specialization. Recently, members of the tax bar approached the Law Society, encouraging the Benchers to consider a program for the certification of tax specialists. It seems the Chartered Accountants are developing such a program to keep ahead of the other accounting disciplines, and the tax lawyers need accreditation to keep one step ahead of the accountants.
But why just the accountants? Paralegals and business advisors, seeking to engage in the practice of law, have crept well over the horizon. The solution must be to make the lawyer a better and more marketable service provider. Specialization, with the attendant expertise, is one such step we must take. In other words, we must emphasize and focus on the knowledge we have relative to others who may seek to involve themselves in competition with us.
I am pleased the Benchers will soon be taking a fresh look at specialization.
The second aspect to this is that we must ensure lawyers can maintain and enhance their knowledge through both traditional and emerging resources. We are lucky to welcome Sylvia Teasdale as the new head librarian of the British Columbia Courthouse Library Society. She assumes her new position at a time when much is happening in the evolution of information service providers.
The Law Society is committed to the harmonization of the delivery of legal knowledge in a cost effective fashion — critical to a knowledge-based profession. We fund a variety of organizations and programs intended to provide lawyers with the tools of the trade; these include the Continuing Legal Education Society, CanLII (the virtual law library) and the courthouse libraries. This harmonization process may not be easy, but I have confidence it will work because of the expertise and commitment to the profession of all involved. You will appreciate that each of these organizations provides essential material to the members of our profession, though not without some overlap. As the delivery of information evolves, so must each of the service providers, with a view to ensuring cost-efficiency, the ready availability of as much information as possible and the provision of professional assistance for the member who wants to keep on top of the burgeoning mountain of available information. All this must be done at a time when budgetary demands are expanding and there are diminishing financial resources.
The underlying challenge for us is to plan for a future in which the lawyer remains a valued, trusted and respected advisor, and recognized as such by all those who need legal services.
On a different note, I would like to extend the sincere congratulations and warmest wishes of all the Benchers to Mr. Justice Robert Crawford, formerly a Bencher for Westminster County, who was appointed to the B.C. Supreme Court on September 28, replacing Mr. Justice J.F. Rowan.
The decision of the Court of Appeal in Douglas Symes & Brissenden v. LSBC Captive Insurance Company et al. brought into sharp focus the business exclusion that has formed part of the compulsory insurance coverage for more than 10 years.
In November last year, the Benchers initiated a review of the current business exclusion. At their October meeting this year, the Benchers decided to give law firm partners an option to purchase from the Lawyers Insurance Fund "innocent insured" coverage that would generally protect them from the consequences of any particular partner being off-side the business exclusion. This coverage is described more fully on page 5.
Recently, Carman Overholt, President of the B.C. Branch of CBA, has written in BarTalk about what he perceives as the inadequacy of the insurance coverage provided by the Lawyers Insurance Fund. I believe that the Benchers' decision to offer optional "innocent insured" coverage addresses the main point of Mr. Overholt's column. However, I must take this opportunity to address some of his specific comments that reflect unfairly on the Lawyers Insurance Fund and the Law Society's insurance program.
The Law Society operates the compulsory insurance program for the benefit of the public and all the insured members. In considering the coverage offered, the Benchers are mindful that any covered claim must be paid for by the members as a whole. There is, of necessity, a balance struck between the scope of the coverage provided and the cost of that coverage to the insured membership. Some may argue, after the fact, that the right balance is not struck in the case of the business exclusion. However, providing "innocent insured" coverage for all law firm partners burdens the 2,200 sole practitioners who will never receive any benefit from such coverage and certainly provides no incentive for partners to police themselves.
The compulsory insurance program managed by the Lawyers Insurance Fund since 1986 has consistently offered reasonable coverage, consistently received third-party praise for its claims management and consistently offered B.C. lawyers stable, reasonable insurance fees. To suggest, as Mr. Overholt does, that existing coverage is inadequate, or that the "business exclusion clause" is unfair because of one firm's experience, and that the Benchers and staff of the Lawyers Insurance Fund have been dilatory in addressing the issues, is unfair and unreasonable.