TORONTO, Aug. 2 /CNW/ - This week's edition of Maclean's magazine
contains the following editorial, a response to the Canadian Bar Association's
condemnation of the magazine and its request for an apology for our August 6
cover story, Lawyers Are Rats.
Maclean's gave the CBA a page in the magazine to respond to our cover
story, and we posted their press release condemning the magazine on our
website. Maclean's requested the CBA circulate our response to its members. So
far they have declined to do so. The subject of our interview, Philip Slayton,
has challenged the CBA to debate the issues raised by our piece, but the Bar
Association has so far declined that as well. Furthermore, the CBA has
repeatedly attempted to apply financial pressure to our parent companies,
Rogers Publishing and Rogers Communications Inc., in order to force an apology
Ken Whyte, Editor-in-Chief and Publisher of Maclean's, made the following
comments: "That the CBA would refuse to debate the serious issues raised by
our piece and instead try to -- let's put the best face on this -- use its
financial muscle to purchase an apology from us rather confirms the sentiment
of our cover line."
The following editorial appears in this week's issue (August 13th, 2007)
of Maclean's magazine:
Last week, we published as our cover story an interview with Philip
Slayton, an ex-Bay Street lawyer and the former dean of law at the
University of Western Ontario, who, after 41 years of teaching and legal
practice, has written a book accusing his profession of failing its
cherished ideals and working to the detriment of society.
Mr. Slayton describes the world of Canadian law as miserable, amoral,
obsessed with making money, rife with fraudulent and unethical activity,
poorly regulated, and indifferent to issues of justice. In plain
language, he argued that lawyers are rats, a phrase we chose as our cover
line for the issue.
In all honesty, we had misgivings about the headline. Before we go to
press, we always ask ourselves whether our cover will engage a reading
audience. It wasn't difficult to imagine dismissive reactions to that
particular line: "it's redundant," or "it's not news," or "at least
they're not journalists."
But we looked again at the interview and concluded that the line was a
reasonable reflection of Mr. Slayton's views, and that what he has to say
is newsworthy -- it's not every day that an intelligent, sincere, and
accomplished individual who has given his entire working life to legal
work and education takes the trouble to call out his profession. Even
before the magazine had hit newsstands across Canada, the Canadian Bar
Association issued a release condemning Maclean's for publishing the
interview. It launched a countrywide campaign to combat the "outrageous"
accusations in the interview, and to dismiss them as the rantings of a
lone disaffected practitioner. The president of the Ontario Bar
Association, evidently believing the CBA had wimped out, followed up by
comparing us to Nazis and suggesting that lawyers are all that stands
between civilization and tyranny.
We have extended our Mail Bag section this week to give voice to many of
the lawyers, legal associations, and interested readers who took
exception to Mr. Slayton's comments. We encourage readers to give them a
fair hearing. These are complicated and important issues, and reasonable
people may find grounds to disagree with our interviewee.
Meanwhile, we'd like to explain to the members of the legal community who
wrote us why we won't be answering the CBC's call for us to apologize for
Mr. Slayton's "distorted" remarks. The characterization of Canadian
lawyers as amoral, obsessed with money, and indifferent to issues of
justice is hardly new. A few years back, Roy McMurtry, then chief justice
of the Ontario Court of Appeal, told the Law Society of Upper Canada that
undue emphasis on the bottom line "has led in recent times to a lessening
of recognition of the importance of the ethics and culture of public
service." Justice Rosie Abella of the Supreme Court of Canada hit the
same notes in a 1999 speech about a "crisis of professionalism" that
threatens the "very legitimacy" of the legal profession. University of
Windsor legal ethicist David Tanovich writes that over the past two
decades legal practice has come to mean "competition, maximization of
profit, and efficiency rather than public service and the pursuit of
justice." In other words, lawyers have joined the rat race.
Days before our story hit the streets, Brent Cotter, University of
Saskatchewan dean of law and the former deputy minister of justice and
deputy attorney general in that province, publicly lamented his
profession's lack of concern with the fact that it had priced itself out
of reach of average Canadians and appeared indifferent to "the consequent
denial of access to justice for those for whom legal aid is not
available, but who cannot afford a lawyer."
As to Mr. Slayton's contention that the profession was failing to police
itself adequately, we refer again to Brent Cotter who also spoke of
"significant institutional failures of self-regulation, inadequately
addressed by the legal profession" in Canada. He felt that these failures
"invite criticism and investigation" and threaten the long-term viability
of self-regulation. There is in fact a vast literature on the problems of
lawyerly self-regulation, and none of the commentators accuse the legal
community of being too vigilant with itself. Indeed, the problems
Mr. Slayton cites are among the reasons parts of Britain, Australia, and
other jurisdictions are jettisoning it.
That leaves miserableness and 'rife with fraudulent and unethical
activity.' We haven't found the lawyers in our ambit to be especially
miserable, but Roy McMurtry was concerned enough about his colleagues to
see relevance in a U.S. study that discovered higher levels of "divorce,
depression, severe stress, suicide, alcohol abuse and drug addiction
among lawyers." He also noted that an Ipsos-Reid survey presented to an
annual CBA meeting found lawyers to be more dissatisfied than other
On the last point, Mr. Slayton was referring in particular to fraudulent
and unethical billing practices. We're not experts on this so we'll have
to refer you to a paper on the CBA's own website by law professor Alice
Woolley of the University of Calgary. Here's the abstract:
"In the United States hourly billing by lawyers has been demonstrated to
lead to both inefficiencies, where clients pay for work done to generate
hours rather than results, and dishonesty. While the vast majority of
Canadian legal work is billed on an hourly basis no attempt has been made
in Canada to analyze either whether hourly billing leads to the ethical
problems here or whether the regulatory regime governing hourly billing
by Canadian lawyers is sufficient. This essay argues that hourly billing
leads to inefficiency, the temptation to be dishonest and to dishonesty,
in fact, in the Canadian professions."
In a 2005 paper, Professor Woolley writes that the "ethical problems
arising from hourly billing are well documented," and cites academic
literature that describes unethical billing as a "genuine professional
plague" and "a silent epidemic."
Which brings us finally to the CBA's argument that we have unjustly
smeared each and every lawyer in Canada with the shortcomings and
transgressions of a few. We don't dispute that there are many hard-
working and honest lawyers in Canada. It is nonetheless clear the
problems raised by Mr. Slayton are not nearly so isolated as the CBA
suggests; rather, they preoccupy many of the best minds in the legal
community. What's more, the whole point of being a self-governing
community is that member-practitioners are collectively responsible for
the welfare of the profession. Every Canadian lawyer is implicated in the
failures of the Canadian legal profession cited by Mr. Slayton and the
various experts above.
Until the CBA wrenches apologies from Roy McMurtry, from Rosie Abella,
from Brent Cotter, from professors Tanovich and Woolley and the hundreds
of other concerned professionals who have been quietly worrying and
debating the same issues raised by Mr. Slayton in our magazine last week,
we feel no need to tender our own.
Mr. Slayton has done the Canadian legal profession a service by going
public with his concerns. As professor Tanovich notes, one of the
problems in assessing and policing unethical conduct among Canadian
lawyers is "the wall of silence that forms part of the elite firm
culture." Our interview broke through the wall. And, yes, our headline
was tough, but one of the bright consistent threads through the
literature on the problems of the Canadian legal profession is that legal
professionals are more interested in maintaining a lucrative status quo
than in confronting the need to reform. You have to shout, in such
circumstances, to get their attention.
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