Return of the Corvée?

Most of us sat through history lessons on the seigneurial system in New France. (History was very badly organized in the Ontario curricula in the 1970s and early 1980s and so I had to take it three times before Grade 10!) In those classes we became familiar with the term "corvée", which is "labour, often but not always unpaid, that persons in power have authority to compel their subjects to perform". They key words, naturally, are "unpaid" and "compel". These words came to mind today as I sat through my Law Society webcast of The Annotated Retainer Agreement.

Ms. Sharon Shore of Epstein, Cole, (a very respected Toronto family law firm) gave a presentation on retainers in family law cases. One of the things that she has noted is that courts are increasingly requiring lawyers in family law cases to stay on the record and continue to represent their clients for further stages, long past the time when the client has paid -- or has the ability to pay -- the lawyers's fees. Ms. Shore noted that she had recently seen a case where a lawyer had to stay on the record for an additional two months and perform all the work to be done during that time. While she did not say so specifically one must concede that it is unlikely that the lawyer in that case will ever see payment for all that work.

Lawyers often have to deal with the conflicting demands on them as professionals on the one hand with being business people on the other. This problem often takes quite literal form as the caselaw in assessment cases (where the quantum of a lawyer's bill is examined) and professional liability cases are often in direct conflict. One assessment case may say that in Situation X a lawyer can't collect for making a judgment call to proceed with Action Y because it wasn't part of the retainer agreement and the client can't be forced to pay for something that the lawyer independently thought was in the client's best interests. However, a solicitor's negligence case may have a holding that in a same or similar Situation X the lawyer was obliged to perform Action Y because it was necessary for the client and that the duties incumbent upon a professional transcend the usual "no pay no work" underpinning of a normal commercial service transaction. These dilemmas are usually resolved by lawyers' governing bodies, insurers, courts and assessment officers in favour of the client. (The myth that judges and lawyers protect other lawyers is just that: a myth. It is rather closer to the truth to say what one lawyer attending the session said: that the lawyers are seen as a source of fiscal indemnification for the mistakes of others. The reader will thus start to get some small idea of why law is listed as a "disabling profession" in the book of that name and why they suffer higher burnout, suicide and alcoholism rates than the general population; having to square a circle under great stress and externally imposed demands will do that.)

It is a given that the court processes are becoming unaffordable and that access to justice is a vital and indispensable necessity for a civilized and complex society. I do have profound concerns, though, about a system which responds to problems created jointly by its own structural flaws, governmental under-budgeting, conflicting demands, increasing complexity and sophistication and information-intensiveness, and, most of all, hugely increased public demand by simply demanding that lawyers work for free. Nobody is demanding that the judges work for free, or the court clerks, or the expert witnesses, or the doctors, psychologists or counsellors, or court reporters or process servers ... of all the people being paid to be in a court only the lawyers can be and are arbitrarily deemed to be available without charge.

The problems of the court system are very large and demand immediate attention, but telling lawyers and lawyers alone among all the involved professionals that their need to be paid for their time and effort is now an optional extra is a cop-out, and a highly selective and hypocritical one at that.