Who Should Regulate Lawyers?

[FTA Lawyer]

There is ever-increasing pressure throughout Canada to remove the governance of the legal profession from the Law Societies of each Province and form government regulatory bodies to take their place.

The most often cited concern from the public is that lawyers policing lawyers means that regulatory and disciplinary decisions are made for self-preservation and the public at large is put second.

The most often cited argument from lawyers is that the profession must remain truly independent if it is to serve the public properly. Lawyers are required to put forth some of the most unpopular arguments on behalf of their clients, and they must be able to do so free from fear of political influence or punishment.

I for one side with the lawyer's argument (well I am one) but not without the ability to acknowledge that there might need to be improvements to the current status quo. Consider for example if you hire a lawyer to challenge what you claim to be an unconstitutional act by a municipal, provincial, or federal government. Would you really feel confident in the zealousness of your representation if you knew the lawyer had a personal interest in not rocking the government boat too much (to avoid a rough ride from government regulators)?

Interested to hear what others views of this topic are...

FTA Lawyer

[Argus]

Pimps?

They're used to dealing with people who'll do anything for money, and people who are looking to screw other people.

[cybercoma]

Pimps?

They're used to dealing with people who'll do anything for money, and people who are looking to screw other people.

<{POST_SNAPBACK}>

BRILLIANT!

But seriously, what's the difference if the government does it. Most of them are/were lawyers too, so who cares?

[Renegade]

Short of defining what is illegal behaviour, the government should not be regulating lawyers for exactly the reasons you have stated.

The biggest downside of lawyers regulating lawyers seems to be the perception that they would "protect their own". I would assume that a regulatory body would very much care about such a perception and would institute sufficient transparency into its proceedings to mitigate such a concern.

[FTA Lawyer]

Pimps?

They're used to dealing with people who'll do anything for money, and people who are looking to screw other people.

<{POST_SNAPBACK}>

BRILLIANT!

But seriously, what's the difference if the government does it. Most of them are/were lawyers too, so who cares?

<{POST_SNAPBACK}>

Argus - pimps...funny (really, I did chuckle)...but we don't all prostitute ourselves for the almighty dollar. Some of us are even ethical when we ply our trade!

cybercoma - the difference is not in the individual doing the review, but the mandate being served. I have brought applications to strike various pieces of Provincial and Federal legislation in different court proceedings. As of right, the Attorney's General of the province & feds can intervene to defend their legislation and often do.

Having someone who reports to the Attorney General be responsible for regulating me (with the power to instigate disciplinary proceedings against me) while at the same time someone from the same office coming in to battle it out in court over the life or death of government legislation is a recipe for all kinds of abuses.

The AG could leverage disciplinary proceedings against a lawyer to get them to abandon a challenge against the government. Even if they didn't overtly do it, the lawyer might be less than forceful in his or her arguments out of concern for their own self-interest.

With an independent Law Society in charge of controlling me, I can throw everything I've got at the government for an unjust law / policy / action without any concern that I'm screwing myself. At the end of the day, it is the interest of the client that gets served by keeping government out of the regulation equation.

[FTA Lawyer]

Short of defining what is illegal behaviour, the government should not be regulating lawyers for exactly the reasons you have stated.

The biggest downside of lawyers regulating lawyers seems to be the perception that they would "protect their own". I would assume that a regulatory body would very much care about such a perception and would institute sufficient transparency into its proceedings to mitigate such a concern.

<{POST_SNAPBACK}>

You're quite right...the Law Society goes to great length to be open and accessible to the public. In fact, the board of directors or "Benchers" of the Law Society who conduct hearings, set rules / policy etc. are not exclusively lawyers. 4 of the 24 benchers are "lay benchers" who are members of the non-legal community that are appointed by the Justice Minister to ensure that public concerns and issues are addressed.

You can get alot more info on the LSA's website:

http://www.lawsocietyalberta.com/

FTA Lawyer

[Guest eureka]

I would accept that Lawyers be regulated in accordance with Shakespeare's dictum so that we are freed of parasites.

Seriously, I would support your idea except that it has led to an incestuous circle that does not serve the public expeditiuosly or inexpensively in some areas of law. The iron grip needs to be loosened.

[FTA Lawyer]

I would accept that Lawyers be regulated in accordance with Shakespeare's dictum so that we are freed of parasites.

Seriously, I would support your idea except that it has led to an incestuous circle that does not serve the public expeditiuosly or inexpensively in some areas of law. The iron grip needs to be loosened.

<{POST_SNAPBACK}>

I am curious if anyone out there has gone through the process of complaining against a lawyer to the Law Society (of any Province) to know if their experience left them with the bad taste in their mouth that you are not so subtly alluding to.

[cybercoma]

I would accept that Lawyers be regulated in accordance with Shakespeare's dictum so that we are freed of parasites.

Seriously, I would support your idea except that it has led to an incestuous circle that does not serve the public expeditiuosly or inexpensively in some areas of law. The iron grip needs to be loosened.

<{POST_SNAPBACK}>

I am curious if anyone out there has gone through the process of complaining against a lawyer to the Law Society (of any Province) to know if their experience left them with the bad taste in their mouth that you are not so subtly alluding to.

<{POST_SNAPBACK}>

I've heard quite the contrary myself. Anytime a lawyer is brought up to the law society, that I've heard of anyway, they're investigated quite thoroughly and it's usually a very serious matter.

I see what you're saying about the government having a conflict of interest on an even more damaging scale than the law society does. I think I'd rather have lawyers looking out for lawyers rather than politicians looking out for themselves.

[Argus]

Argus - pimps...funny (really, I did chuckle)...but we don't all prostitute ourselves for the almighty dollar.  Some of us are even ethical when we ply our trade!

I don't neccesarily speak to the legal ethics of lawyers, though of course I could.

One of the problems is that the ethics of lawyers in their requirement to serve the needs of their clients is often at odds with public morality, decency and of course, ethical values.

They serve a legal system which cares more about how a thing is done then whether it is done right or justly, and which does not serve the needs of the community.

And, of course, most of them got into law for the money, not out of some particular dedication to law or justice. Generally, people who become architects have a fondness for building things. People who become doctors have a deep interest in curing the sick, in helping people. People who take up marine biology, astronomy, geology, etc., have a fascination for those subjects. But those who become lawyers - want to make a lot of money. Thus the ethical lapses, some of which are illlegal, some of which are, immoral, and some of which are merely in line with cheating auto mechanics and renovations contractors.

It would be difficult to have anyone but lawyers regulating them because other than lawyers, it can be argued no one would understand the intricacies of the law sufficiently to judge whether, for example, too many hours were billed on a particular case, or whether a lawyer should have taken a different strategy in defending his client, or whether the words in a contract were sufficiently narrow to properly protect a client. Maybe we could find lawyers who aren't money hungry trolls. There are always a few who care more about basic justice than how much money they can make.

[Guest eureka]

Actually, that is not what I was alluding to, though Argus has made the points wrt. I am more concerned with the cozy relations between the different areas of the legal profession: with the exclusion of lay people from everything to do with law.

There are areas of law where the average person can not afford representation. Yet, law prevents them from seeking justice without the represenatation they cannot afford. There laws that exclude any but lawyers appearing in court. There are acts that were designed, and drafted, so that lay people could represent themselves and where lawyers are discouraged from participating. Yet, there are other laws that prevent, for example, agents from representing those people.

These exclusionary laws were drafted by lawyers for their own benefit and not for the cause of justice - and they are offensive to any definition of rights.

This is an issue that I often considered, in the past, challenging. Now, I cannot be bothered with the fight.

[rbacon]

Let the consumer regulate them. If they are bad don't use them. The last thing we need is more laws in Canada.

[FTA Lawyer]

One of the problems is that the ethics of lawyers in their requirement to serve the needs of their clients is often at odds with public morality, decency and of course, ethical values.

They serve a legal system which cares more about how a thing is done then whether it is done right or justly, and which does not serve the needs of the community.

And, of course, most of them got into law for the money, not out of some particular dedication to law or justice. Generally, people who become architects have a fondness for building things. People who become doctors have a deep interest in curing the sick, in helping people. People who take up marine biology, astronomy, geology, etc., have a fascination for those subjects. But those who become lawyers - want to make a lot of money.

...

Maybe we could find lawyers who aren't money hungry trolls. There are always a few who care more about basic justice than how much money they can make.

<{POST_SNAPBACK}>

Argus,

I have to take great exception to your characterization of lawyers and ethics and the reasons that motivate people to enter law.

I cannot argue with the fact that some lawyers are "money hungry trolls" as you have put it, but to suggest that most lawyers enter the profession just to make money is simply unfair.

Many lawyers are passionate about the law itself, the drama of the courtroom AND the opportunity to HELP people. Trash lawyers all you want, but God forbid you find yourself injured in an accident...or having injured someone else...or charged with a criminal offense (it doesn't just happen to career criminals you know)...or in a contract dispute with your employer...you will need help and will likely look to a lawyer to get that help.

Many lawyers volunteer their services to Boards of Directors of companies and charities, perform pro-bono work domestically and abroad, and accept miniscule compensation to act for people on Legal Aid certificates. Legal Aid currently pays a rate of $80.00 per hour which is less than you will pay for almost any tradesperson to do work for you. Further, coverage is very limited in terms of the total hours you can bill (in most cases you can only get paid for 1 hour of interview time with a client...when on average you will spend 4 times that long dealing with phone calls and meetings to discuss their case). As a result, the notional rate you can get on Legal Aid is often less than $50.00 per hour. Factor in what it costs to run a law practice, and dreams of being filthy rich quickly fade.

On your comments about the "ethics of lawyers" I quote to you from the first 6 rules of Chapter 1 of the Law Society of Alberta's Code of Professional Conduct:

1. A lawyer must respect and uphold the law in personal conduct and in rendering advice and assistance to others.

2. A lawyer should seek to improve the justice system.

3. A lawyer must not act in a manner that might weaken public respect for the law or justice system or interfere with its fair administration.

4. A lawyer should support and contribute to the profession's efforts to make legal services available to all who require them, regardless of ability to pay.

5. A lawyer must be couteous and candid in dealings with others.

6. A lawyer's position must not be used to take unfair advantage of any person or situation.

You may have encountered lawyers who do not follow these rules, but then they have personal problems regarding ethics...their individual bad conduct does not somehow become "lawyers ethics".

Hopefully, that is where rbacon's idea comes in about consumer regulation...but that only works if members of the public praise the good lawyers to others, and not just speak foul of the entire profession.

FTA Lawyer

[Argus]

Maybe we could find lawyers who aren't money hungry trolls. There are always a few who care more about basic justice than how much money they can make.

<{POST_SNAPBACK}>

Argus,

I have to take great exception to your characterization of lawyers and ethics and the reasons that motivate people to enter law.

I cannot argue with the fact that some lawyers are "money hungry trolls" as you have put it, but to suggest that most lawyers enter the profession just to make money is simply unfair.

Are you saying the majority of those who enter law dream of spending hours and hours in windowless rooms going through old law books researching obscure precedents?

Many lawyers are passionate about the law itself, the drama of the courtroom AND the opportunity to HELP people.  Trash lawyers all you want, but God forbid you find yourself injured in an accident...or having injured someone else...or charged with a criminal offense (it doesn't just happen to career criminals you know)...or in a contract dispute with your employer...you will need help and will likely look to a lawyer to get that help.

To begin with, I'd say that much of my dislike of lawyers is due to my dislike of the system of law itself, which confers such an order of complexity and expense on even the simplest of disputes that even making use of the law system is rarely an option for most people. Corporations can use the law, as can governments and rich people. For ordinary people, any requirement which draws them into the legal system threatens bankruptcy and poverty. This is why even the threat of legal action can be used to intimidate those who are not wealthy. Whether you win or lose you still lose.

As a lone example, I offer up the case of an uncle who bought a piece of forest property outside Ottawa. He moved into the house, and subsequently discovered a trespasser living on his property. It cost him $40,000 in legal fees and an enormous amount of time to turf a man who was squatting in the woods (said man, of course, receiving free legal services). I introduce this not as a shocking example, but a routine incident demonstrating how ludicrously complicated and expensive and cumbersome the law is. It is an absurd system which benefits no one but the lawyers who, like ancient monks, are steeped in the arcane and ritualistic knowledge and language no one else can understand.

As for lawyers themselves, I put it to you that the ethical values of a lawyer, and what deems him or her to be a very good lawyer, can be at odds with common morality. The lawyer who can excuse his criminal client from punishment on an obscure technicality, or can change the interpretation of law by the Supreme Court in order to excuse his client, receives accolades from the legal community. Bernardo's own lawyer was required by his "legal ethics" to assist his client to such a degree he hid evidence. Had he been able to get Bernardo off completely legal ethics would say he must do so.

Likewise, the lawyer who can build a contract which, in effect, screws everyone but his client, is again reverred by the legal community. We've all heard of the contracts drawn up by insurance company lawyers, for example, wielded like truncheons against those who dare make claims. "Ah, you see, Mrs. Smith, your insurance policy is only good on every second leap year, and then only during a full moon! You can see it here in the fine print!" (yes, an exageration, but still...)

And while I'm quite in agreement that many lawyers are honest there are certainly many who are not. Again, we've all seen cases where lawyers bill for more hours than they actually worked, or bill full rates when most of the work was done by legal assistants and clerks. That is about as unusual a situation as a mechanic replacing a part which never needed replacement - or saying he did.

But as I said, all of this really is just on top of the main problem - which is that the legal system is beyond the reach or use of ordinary people. It has become the province of the wealthy. It is grossly inefficient and ineffective both in criminal law (why should it take two bloody years to convict someone of a minor crime?) and in tort law, where cases can run on for year after year. This is why I despise the system, and can have little respect for the merits of those who work in it. I'm all for tearing the whole damned thing down and starting over from scratch with some form of lay mediators and a requirement that all laws be written in clear, simple language ordinary people can understand.

[FTA Lawyer]

Are you saying the majority of those who enter law dream of spending hours and hours in windowless rooms going through old law books researching obscure precedents?

Ever heard of somone interested in history...take a look, most universities have whole degree programs in it...law is just a form of history and contrary to what you might think a large research project can be fascinating. Besides, that's like saying that all architects do is sit in a room with a calculator all day and measure angles. I am living out my dream every day of arguing cases in a courtroom with the challenges and unpredictability of witnesses, the adversary on the other side, and the judge who ultimately I am attempting to persuade.

For ordinary people, any requirement which draws them into the legal system threatens bankruptcy and poverty.

I can't argue with you that many people are stuck getting whatever "justice" they can afford. All I can say is that's why I do Legal Aid, pro bono, and reduced-fee work for people who can't pay my normal rates.

It is an absurd system which benefits no one but the lawyers who, like ancient monks, are steeped in the arcane and ritualistic knowledge and language no one else can understand.

I make no apologies for having knowledge of a subject matter that many cannot understand...I did go to university for 8 years. Are you suggesting that this is not the case with any profession (or frankly with many non-professional occupations)? Delve into a medical textbook and tell me if it makes any more sense to you than a case report. I don't know the first thing about being an electrical engineer or a marine biologist...they all have their own specialized knowledge / language too.

As for lawyers themselves, I put it to you that the ethical values of a lawyer, and what deems him or her to be a very good lawyer, can be at odds with common morality. The lawyer who can excuse his criminal client from punishment on an obscure technicality, or can change the interpretation of law by the Supreme Court in order to excuse his client, receives accolades from the legal community. Bernardo's own lawyer was required by his "legal ethics" to assist his client to such a degree he hid evidence. Had he been able to get Bernardo off completely legal ethics would say he must do so.

Misinformation can be a very damaging thing...Paul Bernardo's lawyer was prosecuted criminally and underwent Law Society disciplinary hearings for his withholding of the videotape evidence you refer to...because he was required by his legal ethics and the law NOT to do what he did. Here's the charge that was sworn against him as quoted from one of the written rulings in his case:

"Murray, a lawyer, is charged with obstruction of justice pursuant to s. 139(2) of the Criminal Code. [see Note 1 below] It is alleged that he retained certain videotapes which are products and instrumentalities of crime. The Information reads, in part, as follows:

... did obstruct or attempt to obstruct the course of justice by retaining certain videotapes for approximately seventeen months which are products and instrumentalities of crime, to wit: scenes depicting the unlawful confinement of Leslie Erin Mahaffy, unlawful confinement of Kristen Dawn French, aggravated sexual assault of Leslie Erin Mahaffy, aggravated sexual assault of Kristen Dawn French, aggravated sexual assault of Tammy Lynn Homolka, aggravated sexual assault of Jane Doe by Paul Bernardo and Karla Homolka, when [he] had a positive duty to surrender them to the authorities in a timely fashion, contrary to Section 139(2) of the Criminal Code ..."

Not exactly what I'd call "accolades"...please don't keep spreading this wrong example to support your argument.

Your other comments lead me to ask if you would support a major increase in funding for Legal Aid programs accross the country to include more cases that get coverage (both civil and criminal) and to give more money to the lawyers who act for these underprivileged people? Is your answer the same if it means increased taxes?

FTA Lawyer

<{POST_SNAPBACK}>

[Argus]

For ordinary people, any requirement which draws them into the legal system threatens bankruptcy and poverty.

I can't argue with you that many people are stuck getting whatever "justice" they can afford. All I can say is that's why I do Legal Aid, pro bono, and reduced-fee work for people who can't pay my normal rates.

Legal aid is only good for the dirt poor. How do you define "who can't afford my normal fees"? For example, someone who would have to take out a second mortgage to afford your fees would qualify?

It is an absurd system which benefits no one but the lawyers who, like ancient monks, are steeped in the arcane and ritualistic knowledge and language no one else can understand.

I make no apologies for having knowledge of a subject matter that many cannot understand...I did go to university for 8 years. Are you suggesting that this is not the case with any profession (or frankly with many non-professional occupations)? Delve into a medical textbook and tell me if it makes any more sense to you than a case report.

Not at all the same thing. Law is ithe basis for society and its government. Members of society should be able to understand the laws, and thus their proper role and required behaviour within society. They should be able to undertake sanction against those who are disobeying the law, or defend themselves when legal sanction is being applied to them without the cost of that undertaking driving them into bankruptcy. If the use of the law is too expensive it ceases to function properly. It becomes a means for extending the power and wealth of the elites, a mere tool of the wealthy.

Your defence is that medicine is complicated, too. But then, it has to be. Law does not. You can't simplify the human body and its various medical difficulties. You certainly can simplify law and the legal system. But that would not serve the interests of lawyers. If the law was made simple then people would not require their services so often, and they could not charge such outlandish fees.

Most two-party disputes should be resolved without the use of lawyers. Lawyers generally only get in the way of agreement anyway, complicating affairs and stretching them out. Most minor criminal charges should also not require lawyers. I believe ninety percent of what they do has little to do with law anyway, but negotiation between Crown and Defence over the terms of a guilty plea.

As for lawyers themselves, I put it to you that the ethical values of a lawyer, and what deems him or her to be a very good lawyer, can be at odds with common morality. The lawyer who can excuse his criminal client from punishment on an obscure technicality, or can change the interpretation of law by the Supreme Court in order to excuse his client, receives accolades from the legal community. Bernardo's own lawyer was required by his "legal ethics" to assist his client to such a degree he hid evidence. Had he been able to get Bernardo off completely legal ethics would say he must do so.

Misinformation can be a very damaging thing...

Indeed, which is why lawyers practice it so often.

Paul Bernardo's lawyer was prosecuted criminally and underwent Law Society disciplinary hearings for his withholding of the videotape evidence you refer to...because he was required by his legal ethics and the law NOT to do what he did.  Here's the charge that was sworn against him as quoted from one of the written rulings in his case:

"Murray, a lawyer, is charged with obstruction of justice pursuant to s. 139(2) of the Criminal Code.  [see Note 1 below] It is alleged that he retained certain videotapes which are products and instrumentalities of crime.  The Information reads, in part, as follows:

... did obstruct or attempt to obstruct the course of justice by retaining certain videotapes for approximately seventeen months which are products and instrumentalities of crime, to wit:  scenes depicting the unlawful confinement of Leslie Erin Mahaffy, unlawful confinement of Kristen Dawn French, aggravated sexual assault of Leslie Erin Mahaffy, aggravated sexual assault of Kristen Dawn French, aggravated sexual assault of Tammy Lynn Homolka, aggravated sexual assault of Jane Doe by Paul  Bernardo and Karla Homolka, when [he] had a positive duty to surrender them to the authorities in a timely fashion, contrary to Section 139(2) of the Criminal Code ..."

 

Not exactly what I'd call "accolades"...please don't keep spreading this wrong example to support your argument.

Quite the well-thought out rebuttal. Except you neglected to point out that he was acquitted by the court and that the law society withdrew its complaint. I'm quite certain you knew that and equally certain you neglected to mention it simply because it did not support your position. So in other words, what he did was not illegal, nor was it against the ethics of the legal profession. He was, as I said, acting in accordance with legal "ethics" when he tried to help Bernardo get off.

Your other comments lead me to ask if you would support a major increase in funding for Legal Aid programs accross the country to include more cases that get coverage (both civil and criminal) and to give more money to the lawyers who act for these underprivileged people?  Is your answer the same if it means increased taxes?

I would prefer to see a general introduction of mediators who could issue binding and enforceable orders on parties in a dispute. No lawyers would be permitted to be involved in such mediation. I would also like to see lawyers removed from criminal trials in minor matters and replaced by counsellors whose sole duty was to ensure the accused was not being unjustly or unfairly treated. In other words, someone whose duty was to "justice", not to the accused.

[FTA Lawyer]

Legal aid is only good for the dirt poor. How do you define "who can't afford my normal fees"? For example, someone who would have to take out a second mortgage to afford your fees would qualify?

...

Members of society should be able to understand the laws, and thus their proper role and required behaviour within society. They should be able to undertake sanction against those who are disobeying the law, or defend themselves when legal sanction is being applied to them without the cost of that undertaking driving them into bankruptcy.

...

Your defence is that medicine is complicated, too. But then, it has to be. Law does not. You can't simplify the human body and its various medical difficulties. You certainly can simplify law and the legal system. But that would not serve the interests of lawyers. If the law was made simple then people would not require their services so often, and they could not charge such outlandish fees.

Most two-party disputes should be resolved without the use of lawyers.  Lawyers generally only get in the way of agreement anyway, complicating affairs and stretching them out. Most minor criminal charges should also not require lawyers. I believe ninety percent of what they do has little to do with law anyway, but negotiation between Crown and Defence over the terms of a guilty plea.

...

...you neglected to point out that [bernardo's lawyer] was acquitted by the court and that the law society withdrew its complaint. I'm quite certain you knew that and equally certain you neglected to mention it simply because it did not support your position.  So in other words, what he did was not illegal, nor was it against the ethics of the legal profession. He was, as I said, acting in accordance with legal "ethics" when he tried to help Bernardo get off.

I would prefer to see a general introduction of mediators who could issue binding and enforceable orders on parties in a dispute. No lawyers would be permitted to be involved in such mediation. I would also like to see lawyers removed from criminal trials in minor matters and replaced by counsellors whose sole duty was to ensure the accused was not being unjustly or unfairly treated. In other words, someone whose duty was to "justice",  not to the accused.

<{POST_SNAPBACK}>

I don't follow your logic that because I act on Legal Aid matters, and Legal Aid is only for the "dirt poor" this leads you to conclude that I only reduce my fees for clients who have already re-mortgaged their home and gone bankrupt...? I guess you'll never take my word for it so I won't go on anymore about the efforts I put in to make legal services available to everyone. (You know that pro bono means for free right?)

I will concede that more of the general public needs to interact with law on a daily basis than with medicine or other professions and that, therefore, more efforts should be made to de-mystify the law. That being said, you don't need to know the intricacies of the law as it relates to specific intent, voluntariness and self-defence to know that killing is bad, but killing unintentionally can be manslaughter not murder. We certainly shouldn't do away with hundreds of years of development in our legal system just because it would be easier.

As for your complaints about getting lawyers out of many disputes, including "minor criminal" matters (in today's context where on conviction for many offences you are prevented from travelling outside Canada and forced to submit DNA samples to the government I'm not sure which criminal charges you would consider minor if you were charged) your misinformation shines brightly again.

If people resolve their disputes privately or go ask their priest or a neighbour to settle it for them, then the legal system never gets involved. It's people running off to court for everything that is a major part of the problem.

Furthermore, there is no court in Canada that requires you to hire a lawyer. Every individual has the right to represent themselves in any court proceeding and there are rules that judges will use to ensure that a self-represented person is not taken advantage of if the other side has a lawyer.

Every day in Calgary alone there are a multitude of persons who appear and handle their criminal and civil matters on their own, and their participation in the justice system costs them little more than downtown parking.

Civil Provincial court is especially designed to have simplified procedures and rules of evidence and so on with a view to making most people able to handle matters there without a lawyer (disputes up to $25,000.00 in Alberta). There is a voluntary mediation program wich allows litigants to further avoid lawyers and court.

In Queen's Bench (the Superior Court) family cases have mandatory dispute resolution hearings to force people out of court and into a mediation setting, and an incredibly high number of cases are now going to the voluntary "Judicial Dispute Resolution" or JDR program...again, getting out of the traditional courtroom.

In criminal matters your suggestion seems to be that for a lawyer to use the intricate details of the Charter to "get off" a client on a "technicality" is an affront to justice but a "counsellor" (that's another word for lawyer you know) ensuring that a person is not unfairly treated (i.e. his Charter rights are not breached) is a knight in shining armour? Confounding...

It's also interesting that your definition of "justice" in criminal cases seems to equate only to "conviction". You know, justice is actually done when a guilty person is acquitted because there was not sufficient evidence to prove he did it. Ask Milgaard, Morin, Truscott and other wrongfully convicted persons which version of the system they would prefer.

Take Bernardo's lawyer for instance. The end result of those proceedings does not mean what he did was correct or acceptable. My point in mentioning only the charges / discipline proceedings was to show that the view of the state and the regulators is that what he did was completely WRONG no question about it.

The acquittal was not a finding of innocence...quite the contrary. Here is a good summary of the outcome:

"This was not an easy case to defend. As Mr. Justice Gravely found, Murray's concealment of the tapes had the tendency to obstruct justice. The tapes were the product of crime and were far more potent hard evidence than the oft-mentioned "smoking gun". Once the jury viewed the tapes, Bernardo was left with no defence to anything but the murder charges and little chance of a successful defence on those. Left unsaid by the judge, is the belief held by many that, had the tapes been released earlier, Karla Homolka would also have been convicted of murder.

In Murray's defence, it was pointed out that the only official guidance given to lawyers in Ontario was contained in the rule that prohibited lawyers from suppressing what ought to be disclosed. Unfortunately, the rule provides no guidance as to what "ought to be disclosed". As Justice gravely commented, "it is of small help either to counsel or to clients who may believe that both their secrets and their evidence are safe with their lawyers".

In the end, Justice Gravely concluded that Murray's concealment of the tapes had the tendency to obstruct justice and that Murray knew it would be obstructing justice to permanently suppress the tapes. Murray may not, however, have intended to permanently suppress them and he may have believed he had no obligation to disclose them before trial. Justice Gravely found that he was left with a reasonable doubt as to Murray's intention to obstruct justice, and he found him not guilty.

The Law Society apparently agreed with this position. Discipline proceedings against Murray were discontinued. The Law Society is currently attempting to draft rules that will clearly spell out a lawyer's obligations in similar circumstances."

The full article can be viewed at:

http://www.lawyers.ca/dharris/articles/kenmurraycase.htm

The desicion basically was that the rules were not clear enough and that the offence only was certain where permanent concealment of the evidence was intended. The judge was not satisifed beyond a reasonable doubt that Murray ever had such intention.

Obviously the Law Society thought the same, because Murray had in fact called the Law Society before the sh-t hit the fan to ask for their opinion about what he was to do with the tapes.

Saying "we need to clarify our rules and we're not sure that Murray truly intended to break them" is far from saying "way to go Murray, you did the right thing"...

For someone who indicts lawyers so freely for their peddling of misinformation, you seem to be doing a fine job of it yourself...Just don't send me a bill ok?

FTA Lawyer.

[Argus]

I would prefer to see a general introduction of mediators who could issue binding and enforceable orders on parties in a dispute. No lawyers would be permitted to be involved in such mediation. I would also like to see lawyers removed from criminal trials in minor matters and replaced by counsellors whose sole duty was to ensure the accused was not being unjustly or unfairly treated. In other words, someone whose duty was to "justice",  not to the accused.

<{POST_SNAPBACK}>

I will concede that more of the general public needs to interact with law on a daily basis than with medicine or other professions and that, therefore, more efforts should be made to de-mystify the law.

You seem to have utterly missed the point, that no one wants to interact with the law because of its absurd complexity and inefficiency, and that no one can afford to interact with the law because of its enormous expense.

That being said, you don't need to know the intricacies of the law as it relates to specific intent, voluntariness and self-defence to know that killing is bad, but killing unintentionally can be manslaughter not murder.  We certainly shouldn't do away with hundreds of years of development in our legal system just because it would be easier.

You mean better, right? That's like saying we shouldn't throw away thousands of years of perfecting travel by horse just because cars are easier.

The fact remains the law is so complex that few people can understand any more of than what are little more than adaptations of the ten commandments.

As for your complaints about getting lawyers out of many disputes, including "minor criminal" matters (in today's context where on conviction for many offences you are prevented from travelling outside Canada and forced to submit DNA samples to the government I'm not sure which criminal charges you would consider minor if you were charged) your misinformation shines brightly again.

And your economic self-interest speaks clearly. Lawyers are, for the most part, an impediment to justice and most certainly an impediment to the efficient operation of any justice system (actually, to ANY system of any sort). Most people charged with minor offenses don't need a lawyer, and most of the lawyers assigned to them are of little value anyway. The most they do is negotiate terms with the Crown prior to a plea.

Furthermore, there is no court in Canada that requires you to hire a lawyer.  Every individual has the right to represent themselves in any court proceeding and there are rules that judges will use to ensure that a self-represented person is not taken advantage of if the other side has a lawyer.

So you're saying lawyers are useless? Few people have the ability to represent themselves adequately in any kind of legal proceedings. Which is why we have "the best law your money can buy" even now, meaning whoever can afford to pay the most for the highest priced lawyers usually wins.

In criminal matters your suggestion seems to be that for a lawyer to use the intricate details of the Charter to "get off" a client on a "technicality" is an affront to justice but a "counsellor" (that's another word for lawyer you know) ensuring that a person is not unfairly treated (i.e. his Charter rights are not breached) is a knight in shining armour?  Confounding...

I suspect you are deliberately misinterpreting what I said. The present adversarial system means that the only interest a lawyer has (aside from his fee, of course) is getting his client off - no matter what. Likewise, though to a lesser degree, the Crown's interest is served in conviction. What I'd like to do is replace both with a far less adversarial system whereby the counsellors involved are required to serve only the interest of justice.

It's also interesting that your definition of "justice" in criminal cases seems to equate only to "conviction".  You know, justice is actually done when a guilty person is acquitted because there was not sufficient evidence to prove he did it. 

Again, I suspect a deliberate misinterpretion. The job of a court should be to sift through all available evidence to determine guilt. The job of a defence council should be to ensure the client's story is told, and to point out whatever faults are in the prosecution's evidence. That's it. I'm not particularly interested in whether or not the accused's technical rights (as opposed to human rights) were violated. If officers of the court break rules they should be punished, but guilty men should not be acquitted.

Your belief that "justice" is done when a guilty person is acquitted due to lack of evidence I find quite bizarre, and another illustration of how legal ethics are at odds with public morality. Few people other than lawyers would believe there was any justice in a guilty person going free. That you believe this to be the case makes my case for me.

As for innocent men being convicted, that happens all the time in the present system. Perhaps a more cooperative system would reduce that. As long as the lawyers' names are made on their batting ratio, however, we're going to continue seeing injustice.

The desicion basically was that the rules were not clear enough

Rules not clear enough? Perhaps you've forgotten my point, that legal ethics often are often severely at odds with common morality. There is certainly no doubt he knew what was on the tapes, and common morality would have had them immediately turned over to the Crown. Murray, however, had no such sense of morality, as it was overriden by his legal "ethics". Perhaps he merely thought that justice would be served if Bernardo got off due to lack of evidence.

[Nemo]

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[Guest eureka]

How does a lawyer get a wrongdoer "off." Surely it is the court that finds an accused as Not Guilty and therefore not a wrongdoer

[Nemo]

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