LAWYERS TOLD TO GET MADD

The trio of former attorneys general had a tough, hard-to-swallow message for lawyers concerned about the chronic underfunding of legal aid and the continuing crisis in the courts: Governments don’t give a damn.

In Vancouver last week for a conference on pro bono (free) law, the two ex-B. C. ministers and an erstwhile Ontario attorney general told their professional peers to drop their collective we-are-so-worthy lament and get MADD.

“Be MADD not glad, would be my trite phrase” quipped Michael Bryant, the top legal adviser at Queen’s Park from 2003-07.

“Fear is what motivates governments. That’s why Mothers Against Drunk Driving, MADD, has been so successful . ... They’ve developed into a potent force and it’s because they strike fear in the hearts of attorneys.”

He paused: “Civil liberties associations — and I’m head of the Canadian Civil Liberties Association — not so much, right? Not so much striking fear in the hearts.”

Wally Oppal, a former justice now with Vancouver’s Boughton Law, and Geoff Plant, ex-Liberal attorney general now with Gall Legge Grant Zwack LLP, chuckled.

Bryant said that unless lawyers started to make life miserable for government, there was scant chance of change.

For the past 25 years, he noted, access to justice and legal aid for the needy were an afterthought — justice was about policing, prosecuting and punishing, with a little adjudication along the way.

“I think the only way the game gets changed is going to be through the courts,” Bryant suggested.

“To all the litigators out there, look for that case I’m talking about. The game-changer, the swing-for-the-fence case. I don’t think we are litigious enough at all in Canada and I don’t think we are causing enough heartburn in Ministry of the Attorney General.”

All three agreed access-tojustice issues were not a priority because 70 per cent of provincial budgets were consumed by the health and education portfolios.

“I was appointed AG in 2005 and thought I was pretty big stuff, supposedly one of the three most powerful people in government according to the media,” Oppal remembered. “Instead, I got there and discovered the health-care budget was $14 billion, education was $12 billion and mine was just under a billion — that put me in my place.”

Couple that with a lack of understanding, the former politicians conceded, and lawyers were close to “Who cares?”

Unlike sympathetic widows and bereaved kids, the face of the legal profession was well-heeled lawyers.

Minister from 2001 to 2005, Plant said the focus must be less on process, less on the importance of legal professionals, less on the self-evident value of the law and more on the mom who needs financial support or the indigent person entitled to welfare who isn’t getting it.

“So the end you seek to serve is not a better justice system, a better-funded justice system or better-paid lawyers within the justice system, but actually the societal improvement that the justice system fundamentally exists to serve,” Plant argued.

Bryant said the bar needed to change the timbre and tone of the conversation with government:

“We do need to collectively come up with what the language is — and I think it is around words like ‘sick,’ ‘unwell’ and ‘pain,’ and you know ‘mothers,’ ‘children,’ ‘disadvantaged,’ ‘vulnerable.’ These are the words and these are the faces of the cause.”

All three said legal ideals can sometimes sound highfalutin while those involved with the legal system wanted down-toearth outcomes.

“Before (small-claims litigants such as tradesmen) say they want a fair trial, before they say they want a well-trained professional as a judge, they say they just want their bill paid,” Plant noted.

People in court aren’t there to listen to lengthy cross-examinations and lengthy submissions, Oppal echoed: “They want a solution to their legal problems and we have to provide a vehicle by which they can get a solution to their legal problems.

“I think there is something wrong with the system where we have trials that last a year. The public loses confidence in us when we can’t get a case on for seven or eight years.”

Plant wasn’t so sure.

In a surgical operating room, he said, the complement of professionals all share a single goal: the health of the patient.

“In the litigation world, all of the analogous actors don’t have the same objective,” Plant pointed out.

“In fact, there are some duties and responsibilities that take place inside that framework where people are to some extent acting directly at cross-purposes from one another and that’s fundamental to how the system operates and it also necessarily produces a measure of inefficiency. It is a conundrum and not easily reconciled.”

Oppal remained worried. “The people who make the decisions and have the money aren’t really enamoured at the way we do our business,” he warned.

“We can’t get anything done on time and that impacts on public confidence and on the willingness of our legislators to give more money for what’s needed. ”

Just remember, Bryant cautioned: “Don’t talk about lawyers, or use the word ‘access’ or ‘justice.’ No Latin — no pro bono publico (for the public good). None of that.”

He glanced around the room: “People are being polite for not giving me a dirty look right now. I was there, in the ministry, I served in government. The kind of radical change I’m talking about, I didn’t do. I failed in that regard. I failed.”

So did the others.

Don’t wait for current AG David Eby to learn the same lessons — get mad.

The public loses confidence in us when we can’t get a case on for seven or eight years.