If you’re interested, here’s a version of the remarks I delivered this morning at the Chief Justice’s Colloquium on Professionalism here in Ottawa. Many thanks again to the organizers for inviting me to speak!
When we talk about professionalism, we can start getting bogged down, because it’s a word that means a lot of different things to different people. Now, in my case, I’m an editor, I’m an English major, I’m basically a word geek – I gave up Scrabble for Lent, if that helps put it in perspective. So to prepare for this event, I did what word geeks do: I went out and looked up “professionalism” in the dictionary. And what I found there was that the Latin root of “professional” is profiteri.
Profiteri has two components: pro, which means “forth,” and fateri, which means “confess.” Taken together, they mean “to announce a belief.” It has religious roots – its original use was to bind yourself, publicly, by a vow or oath, to a vocation or higher purpose. When the word began to filter into wider use, it was applied to occupations, but only to those that involved the same sort of considerations as religious vows: service, selflessness, higher purpose – generally, making things better for others. Originally, only three occupations qualified as professions: ministry or theology, of course; medicine; and law.
So when we talk about traditional standards of professionalism, it’s important we remember we’re not talking about excellence, or good manners, or “total quality management” – or at least, not primarily about that kind of thing. We’re talking about serving the interests of others, prioritizing them above ours for a greater cause.
For a while now, we’ve been talking about a decline in professionalism in the law, or the loss of professionalism. And generally, these discussions have tended to center around things like uncivil behaviour by lawyers, or an unseemly focus on money, or a lack of proper respect for the court, that sort of thing.And it’s good that we’re looking at these things, because they’re real problems, and some of them are serious. But to my mind, they’re really all symptoms – they’re not the underlying disease. There’s a bigger cause behind these effects.
I think the underlying problem – the fundamental thing we’ve lost sight of as lawyers – is that our whole point for even existing, which the etymology of professionalism makes clear, is that we serve others. Lawyers make things better for other people. That’s what we’re here for. We put our interests secondary to the interests of those we serve.
Alright, so who do we serve? In the Donohue v. Stevenson sense, who is our neighbour? Well, we serve clients, obviously – our duties to them are well established. But there’s also a duty to the court, and a duty to opposing counsel. Bu you’ll also find – if you go back, not too far into legal history, a century or two — you’ll find lawyers talking about a duty to society, and a duty to the truth.
That’s a lot of duties. That’s a lot of people whose interests we’re supposed to place ahead of our own. That’s a lot of institutions whose interests we’re supposed to be looking out for. The problem, I submit, is that we haven’t been delivering. As a profession, I think we’ve fallen into the habit of serving ourselves first, and others second. And because that’s a direct violation of the nature of our professional purpose, that’s why professionalism in the law is suffering.
Justice Rosalie Abella, in her landmark 1999 presentation “Professionalism Revisited”, suggested two factors that she saw as contributing to the decline in professionalism: economic pressures and a preoccupation with process. Both these problems are linked to professionalism – there’s no question about that. But with the greatest respect, I don’t think they’re causing a decline in professionalism. I think it’s the other way around. I think a decline in professionalism is causing them.
Let’s start by looking at economic pressures. Lawyers who make client service their top priority do not hurt for money – that’s what every new lawyer is told all the way to his her call to the Bar. Genuine interest in the client’s welfare drives successful law practices. It’s when lawyers lose the ideal of service towards others as their guiding light – that’s when money becomes their primary pursuit. They start serving their own interests first – and that’s when, coincidentally enough, money also becomes their biggest problem.
It must also be said that while lawyers might complain about economic pressures, the fact remains that we offer our services in a marketplace that is far from open. There are numerous restrictions on who is allowed to offer legal services, and an army of regulators ready to pursue those who engage in the “unauthorized practice of law.” Accordingly, lawyers don’t have to deal with much competition, and lack the kind of incentives that force most other service providers to lower their prices and invest in innovation. Without this protection, I expect lawyers would quickly come to appreciate what real “economic pressures” actually feel like.
Regarding a preoccupation with process, it’s important to recognize that if we have a court system that is backlogged, weighed down with procedure and out of touch with everyday reality, that’s because lawyers have made it to suit our preferences. Lawyers are trained to seek the right answer, no matter the time and cost, whereas many clients prefer to find the quickest, cheapest resolution to their difficulty, and never mind if it’s perfect or elegant. Lawyers prefer the court system be the default method for resolving disputes; that’s why ADR methods like mediation and arbitration still carry “A” for “Alternative” in the acronym. None of this makes justice more accessible.
And access to justice matters. If you’re a lawyer who genuinely cares about whether the public can realistically use the justice system, then you don’t put up with a system where only the very rich or the very poor can go to court, and where the other 90% can’t afford the money or the time it takes to see justice done. Lawyers who are OK with the fact that the system works just fine for them, but not for most everyone else – who actively work to protect that system and their privileged position within it – well, it doesn’t matter how civil they are towards others, or how admired they might be for their skills and success; they’re not professionals.
So what do we do now? If professionalism is in such dire straits in the law, how do we bring it back to life? I have a couple of suggestions.
In her presentation, Justice Abella noted that there was at one point a “tacit consensus about what it meant to be a lawyer.” In our modern, and thankfully diverse, profession, that tacit consensus has disappeared. And one of the things that disappeared along with it is a common understanding of what professionalism means.
So what we now need to do is to move from tacit to explicit. We need to integrate professionalism into lawyer training and ingrain it in the everyday behaviour of practicing lawyers. We can’t continue to assume that lawyers will somehow acquire professionalism on the job, “pick it up” through immersion or osmosis, because it’s not happening. We need to make professionalism a foundational part of the legal education and licensing process. Every element of the profession has to play a part: the schools, the law societies and the practicing bar.
What do schools need to do? Make professionalism a separate, core subject in the curriculum, and integrate into as many other subjects as possible. I don’t mean simply a legal ethics course – I mean a full-scale pedagogy of lawyering. Law schools teach the history and purpose of the law; they do not teach the history and purpose of lawyers. That has to change.
The law society? I appreciate that it doesn’t have the time or resources to train bar admission students in professionalism. But the law society is the licensing body for lawyers, governing the profession in the public interest. It has to ensure that new lawyers clearly understand that lawyers’ purpose lies in service and in the improvement of the lives of others.
And the practising bar? It has to lead by example – and I mean, really lead. Every time a lawyer behaves unprofessionally, and doesn’t face serious backlash from his or her colleagues, the bar gets lowered – in both senses of the term. Every instance of self-serving behaviour by a lawyer turns the profession one more degree inwards towards ourselves, and one more degree away from the people and institutions to whom we owe our duties.
If we’re ready to acknowledge what professionalism really means, and if we’re ready to undertake a radical rethinking of how lawyers are trained, mentored and judged, then I really do believe we can revive professionalism.
But that will depend heavily on the profession’s leaders in schools, the law society and the private Bar – which is to say, will it depends on you. If there’s going to be a change for the better, if there’s going to be a true renaissance of professionalism – it’s going to have to start right here, today, with you.