How Lawyers Get Rich

Many of you will have heard this song before. Yet the tragic and untimely death of Dugald Christie last week reminds us that the song must be heard again -- and again, and again -- until those in charge of our affairs listen to the people.

Christie, who was killed in an Ontario highway accident while cycling to Ottawa to promote affordable access to justice, was the lawyer who gave up the good life to help others. It really isn't more complicated than that. And for his pains he was called eccentric, a word defined by Merriam-Webster as "deviating from conventional or accepted usage or conduct especially in odd or whimsical ways, e.g. an eccentric millionaire." Or by extension, I should think, an eccentric lawyer. Christie, whom I interviewed several times, would have been pleased to be so defined, because his eccentricity was what made him so effective and admired.

But why would he be called eccentric? Didn't he practice law in the courts as others do? He didn't carry with him some magic potions. There were no peculiarities of personality that made him different. So why eccentric?

Because he did his work for nearly nothing -- the nearly being just what he could cadge, mostly from other lawyers who salved their own consciences by seeing that he was (most modestly) fed, clothed and housed.

The word eccentric is a wonderful key to this man and his philosophy, because turned on its head it discloses a legal profession that long ago lost its way -- and its eccentricity -- by staying in hard pursuit of the god Mammon. Somewhere along the way the lawyer -- and I was no exception -- decided that he had a special value to society that entitled him to enormous sums of money but with few if any obligations to that society.

Lawyers also came to understand, consciously or unconsciously, that they couldn't be valuable just for their forensic skills or draftsmanship. They needed the power that goes with exclusivity and exclusivity requires an incomprehensible catechism -- incomprehensible to others, of course. No lawyer living today is responsible for this -- he inherited the profitable system. What lawyers are responsible for -- Dugald Christies apart -- is their failure to do anything about it.

Why all the lawyers?

It's interesting to note that Japan, a free and democratic country, highly industrialized, with 127 million people, has 17,000 lawyers. B.C., with a population of 4.1 million, has according to the B.C. Law Society about 11,000! Japan is a highly developed society, sometime banker to the world, and you would think the place would be crawling with attorneys. B.C., a resource-producing province with only one city of any real size, is in fact overrun with them. That means there is one lawyer for every 370 British Columbians and one for every 7,000 in Japan! In the United States it's estimated that there are one million lawyers for just under 400 million people. (You do the math, I've exhausted my arithmetical skills!)

Why is this so? Does North America, and especially B.C., have such a complicated society that we need lawyers in very nook and cranny in the land? I am sure there are cultural differences, but since Japan has a democracy very like that of Canada, it's hard to believe that they don't have similar legal problems in similar quantities. While there is a danger of damning with faint evidence to go on, I'll do that anyway.

In the past five years or so I've been involved in two lawsuits -- one private and one as a broadcaster. Having once practiced law, I suppose I shouldn't have been surprised at what I saw. In each case there were exhausting examinations for discovery. Day after day, dragging out huge dollops of unimportant and irrelevant minutiae, then adjournments, then back at it again. In neither case were we dealing with difficult legal questions -- either I owed my ex-wife more money (I did) or I libelled someone (I didn't at trial but did in the Court of Appeal).

Now in neither case do I criticize those suing me. In fact, quite the contrary. They had a right to sue me if they wished; that's what democracy is all about. I say it shouldn't have been so difficult and costly for them to do so. Moreover, the endless examinations for discovery and multiple adjournments to be paid for by the loser placed them -- and me for that matter -- at an unacceptable risk for simply exercising their right to go to court.

Sue me, sue you blues

The problem is a system that creates irresistible incentives to make each case last, with as many expensive procedures as possible along the way. The Supreme Court rules provide almost endless opportunity to go back and forth to court. One lawyer flings lots of legal paper at the other lawyer who, of course, will then feel obliged to throw more back. All, of course, at the client's expense.

Now you would think that with so many lawyers per capita in B.C., legal fees would be dirt cheap -- that lawyers would be in tatters sitting around the courthouse playing checkers in the hopes that something comes up. The reality is much different, and that's because they have two things going for them -- they have a monopoly and they make up the rules. As long as lawyers have this monopoly on both the practice of law and the rules by which they do so, it will be financially impossible for the average person to go to court.

Before I move over to the civil side, let me tell you this story. I once had a guest on my radio show who lived in a condo. He had a spat with neighbours on each side of him, who wanted what he deemed his property for their deck furniture, which they used accordingly. A typical case involving condo strata councils, I daresay. Dissatisfied with the strata council's decision, he went to court. The court didn't look at the merits of the case, of course, but at whether or not the council had acted properly.

He lost and went to the Court of Appeal. Same result. So he is seeking leave to go to the Supreme Court of Canada. The cost: one wife, many friends and about a quarter of a million dollars! Over some chairs and a table! You might ask, as I did, why he just didn't accept the council's decision (which on the evidence I thought was wrong, incidentally). And he asked: "Why shouldn't I be able to have a judge look at it? It's my home, after all."

Money for nothing

On matters that don't involve litigation, if anything the situation is worse. Lawyers now boldly charge you for nothing.

Here's how it works. Every lawyer has a little recorder on his desk. When he gets a phone call -- say another lawyer making sure of the date of a trial -- the time expended is recorded in 10ths of an hour, .1 being the lowest he can charge. For the phone call from another lawyer that took perhaps 30 seconds on the clients business, the client gets charged for 6 minutes. At $200 to $500 an hour and rising, that sort of thing adds up. Every time the file is perused or a letter written it is billed automatically (minimum .1, of course) with the only check on it being by the lawyer himself.

The size of the lawyer's billings is how law partnerships keep score and determine who becomes a partner and who stays one. Surely it would be fair to observe that there is no incentive to keep the billings to clients down. Quite the opposite. Now I must add that the client can "tax" the bill -- that is take it before the Registrar of the Supreme Court. But that too will cost if you lose, and to have any chance at all you should have your own lawyer! Are you beginning to see where those 11,000 lawyers are getting their Porsches from?

What's the answer? I have one for the high cost of litigation, which I've put to the Attorney-General without reply. Raise the Small Claims jurisdiction to $250,000. Small Claims Division is an oasis of sanity in the sea of green greed that pervades the legal system. Lawyers are permitted but any who's been to that court will tell you that they're not needed. Often they are a handicap, since the no-nonsense judge wants to get to the root of the matter. Just the moving personal injury cases from the Supreme Court to Small Claims would have an enormous positive effect.

There won't be any meaningful changes, though, because those in the field -- the lawyers, the judges and the Attorney-General, are all in on the lolly -- they have an ironclad fraternity/sorority that brooks no suggestion of costly (to them) change.

They're all in on it except, of course, the Dugald Christies, who are few and far between. And, most lamentably, one less with Christie's death.

Rafe Mair writes a Monday column Monday column for The Tyee. His website is www.rafeonline.com.