PREAMBLE –

I am going to add a note up front now that this piece is gaining so much traction. On this sweltering Sunday it has already made thousands of “impressions” and has been reviewed by hundreds. I want to make sure that I do not inadvertently leave the impression (pardon the pun) that I do not love my job. I actually DO. That’s why I’m still doing it.

I consider it a true privilege to be able to do this work and in many ways I’ve had a storied career. There is nothing I’d rather do, nothing as rewarding and nothing could have kept my attention like this area of practice, which in some respects anyway, I pioneered. Or if not quite that, popularized I guess. I love my clients, I find the law endlessly fascinating and I am grateful for the community that is our little bar.

I always knew I’d not get rich doing this work, I knew it would be difficult and challenging, I knew it would be a lot of work. But there is one thing I did not sign up for in all this and that’s the one thing that we never address, so I am doing it today – not for myself – I have a pretty thick skin. I can take it, have in fact taken it for three decades.

But for the next generation. All this talk about our “mental health”. Yoga, bananas, boundaries. Aha. I have a better idea. Let’s change the culture of our justice system that too often discounts what my bar brings to the table at best, and treats us with contempt at worst. Let’s give credit where it’s due to the unsung heroes and shining stars in the legal profession.

ORIGINAL ARTICLE STARTS HERE AS POSTED ON MY SOCIALS EARLIER TODAY

The other day one of our clients refused our services because we were “legal aid lawyers”. When the tribunal was informed that we had been discharged, they appointed him a lawyer through Legal Aid Ontario anyway, citing that he likely lacked both the resources and the wherewithal to retain counsel privately regardless of their fervent desire to do so. Funnily enough, the next time the same client was before the same tribunal, he asked for us specifically – having determined that the prep work we had done was far superior than anything he could have managed on his own and trusting us fully once he was somewhat better.

This of course was not the first time we heard a client suggest that because our retainer was paid through Legal Aid Ontario, we must not be very good. There are clients who would rather find money to pay us privately than accept the legal aid certificate available to them, because they are financially eligible, imagining that if they pay us privately, we will do a better job. Nothing could be further from the truth.

But clients’ views on “legal aid lawyers” are one thing. Many of our clients experience extreme states of mental health and may be expected to have ideas that are not necessarily reality based. These things happen and do not particularly trouble at least me.

However, there is no excuse for the systemic discrimination against my bar that we face every day from other justice system participants, including state actors, crown attorneys, hospital and institutional representatives and sometimes members of the Judiciary or tribunal decision-makers.

And this is what I want to talk about.

I think it’s time for a massive PR campaign for the defence bar in criminal and mental health law.

Young lawyers are leaving the defence bar in unprecedented numbers.

New lawyers have left mental health law and indeed my office, to go work for doctors, hospitals, big firms, the state, other practice areas that are more lucrative. There are certainly many factors that influence those decisions and they’re understandable.

But what’s preventable and unforgivable is one of those reasons driving lawyers away from doing social justice advocacy for vulnerable client populations.

And that’s the abject lack of respect for us and what we do in hearing rooms and courtrooms, as well as outside them, not just for our clients, but in support of the administration of justice. Blatant disregard for the value of our contributions, the quality of our advocacy, our preparation, intelligence, our personalities that allow us to work with particularly marginalized clients effectively, our frank worth.

I’ve been mulling around some of these perhaps on their surface unrelated complaints for a while now, so some of this will come pouring out in what may appear as random ways. You’ll forgive me and trust that underneath it all is more than just outrage – but rather, a plea for systemic change and RESPECT!

Understand Our Role — We’re Not Here to Annoy You — Identifying Rights Violations is Our Job

Let’s start with the other day. I appeared in a hearing where the other side — the state actors — had run afoul an order of the decision-making body. So a tribunal had ordered that something be done. The thing in question was hugely important and the failure to comply with the order had severe ramifications for my client’s liberty. There were other serious failures identified, which were liberty-depriving and should have caused the decision-maker immediate and massive alarm. When alerted to these very troubling issues, the tribunal immediately turned it around onto me with the first line of inquiry being when I put the other parties on notice of what was by then already characterized as “my concerns.”

That’s the first problem. Problematic conduct by state actors, and in that group I include detaining psychiatric facilities and psychiatrists exercising lawful, but nonetheless coercive powers depriving vulnerable individuals of their liberty, is not “my concern.” It is a justice system issue. When these kinds of things are immediately designated as something I want to complain about, they’re already devalued as a kind of process disruptive whining, rather than recognized as helpfully flagging a serious administration of justice problem.

I’m not ringing alarm bells because I am being mischievous or playing at blaming people. It’s my job to bring to the attention of decision-makers deprivations of my clients’ rights that they should find troubling and indeed should often themselves spot. I’m just helping them see clearly so they can act. And where I do so at the outset, I am facilitating the efficiency of the process.

I won’t bore you with how the rest of that hearing went, other than to say this is not an uncommon experience for lawyers in my bar. Institutional errors, failures, purposeful disregard for the vulnerable person’s rights or judicial orders, they all get swept under the rug, forgiven with a shrug but whatever the problem is, it is almost always our fault as lawyers to the poor person, for what amounts ultimately to “trouble-making.”

So the first take-away I’d like justice system participants to have is this — when we draw a decision-maker’s attention to ways in which our clients’ rights have been breached, we are assisting the process and enhancing the integrity of the administration of justice. We are not trying to annoy everyone or waste time. Please stop taking that attitude and blaming us for misbehaving. You’re very far off the mark with all that and at the same time it is insulting and diminishing of our work. It’s uncivil conduct.

Not All “Mental Health Law” is rights-based – Hospitals, Doctors and the Crown Are State Actors

One of the odd-ball things I have noticed recently is that psychiatric facilities, which detain my clients, mostly against their will, are billing themselves as advocates for the rights of those clients and you know, leaders in “stigma-busting.” This is really rubbing off now on lawyers employed or retained by those facilities and psychiatrists who are responsible for that detention or forced administration of medication etc.

So I’ll start with pointing out what I would have thought was obvious. It is wonderful when caring psychiatrists are respectful of their patients’ autonomy or thoughtful about the laws they’re using when restricting liberties. It is equally excellent when lawyers who represent those doctors or hospitals or the state are careful and fair in their approach to the file and the handling of the matter. I personally and my bar generally greatly appreciate decency and collegiality in our colleagues opposite. Without them, much of what we accomplish could not get done and justice would not be served and indeed is often not served where counsel are obstructionist or militant or worse.

With that all said, none of this detracts in any way from the fact that detaining and force-treating my clients makes the state and the detaining institutions the jailors and oppressors. What I’m advocating against is a deprivation of liberty or autonomy or both. That means that the state or hospital actor, and their lawyers, are advocating the other way. It’s the difference between working for the affected population and against them.

“Working with people with mental health issues” is perhaps something psychiatrists genuinely do of course. But lawyers for the state actors really are not working “with” vulnerable clients. They are at least one removed from what we would ordinarily mean by that phrase. By the time lawyers are involved in litigation between our respective parties the dividing line becomes much clearer. What they’re engaged to do is support the removal or dilution of rights. We assert them.

I have noticed in many forums lately that some lawyers and decision-makers who work “in mental health law” for example or advocate for better mental health resources generally, whether for clients or for members of the bar, have identified themselves as advocates for the affected client population whose own mental health is affected, for example just by being involved in litigation about the vulnerable person. I’ve heard that the trauma of the clients has an impact on those lawyers.

I have seen awards given out to lawyers who work in the area in part because they handle the issues with compassion. I do not begrudge anyone their award. Absolutely richly deserved, in many cases anyway. I do, however, beg to differ to the extent that there is any suggestion working for doctors, hospitals or the Crown, even where the litigation involves a vulnerable person, is anywhere near how challenging it is to be that person’s lawyer.

Let’s get real and recognize what it means to be a vulnerable person’s lawyer, and in particular, doing so almost exclusively on legal aid certificates.

We Are Not All Equally Resourced or Equally Compensated or Ultimately Equally Respected

Next, I want everyone to start being mindful of their respective privilege when compared to our bar working on those legal aid retainers for vulnerable populations. If you are paid by the state or by an institution on a salary or a retainer that exceeds approximately $100 per hour, you are greatly privileged when compared with any of us in our seat. When you download work on to us that could and arguably should be done by you, you are requiring that we work for free on top of all the other free work we already do. That no other justice system participant is ever expected to do or actually does.

We have no pensions, holidays, disability coverage etc unless we pay for them out of our own pockets – as sole practitioners or small firm lawyers. We pay our own insurance, fees and all overhead. That’s true for all private practitioners in such solo or small firm environments.

BUT At 32 years at the bar, after a number of recent — and much appreciated — increases, I am now at about $150 per hour on LAO’s tariff. My associates are at maybe $120 or thereabouts. The students at $70ish per hour. In government, private law firms and on Bay Street, the students make more than I do. Add to that, the hours I am permitted to spend on each file are capped, usually at 10. Those are the paid hours. As you may be able to imagine, my colleagues and I spend double, triple that, often. That’s pro bono. On mostly every file.

AND our clients have a lot on their plate. They have survived life-long trauma of repeated hospitalizations, restraints, seclusion, abuse at the hands of police, forced administration of drugs, discrimination at every turn and stereotyped notions of them as dangerous, unintelligent and unable to direct their own life or make their own decisions. They bring all that with them to every file. They have no or inadequate housing and supports, lack access to a living income, and face all kinds of enforced insecurity.

I can’t fix all that, but I can provide the very best legal representation imaginable.

And for that, I often get a stiff kick in the @*#%! – not from the clients – but from my colleagues opposite and from decision-makers before whom I appear. And obviously this is not just me – it’s our whole bar.

The red carpet is rolled out for the docs, the hospital reps, the Crowns and state actors wherever they may go. But it’s actually my side of the table that deserves the medal. Every justice system participant should be genuinely grateful to those of us who have not quit – those who remain in these deeply hidden and harrowing trenches, because what we do matters. Without us the justice system would cave in on itself.

All of this goes for the criminal justice system writ large in even greater measure.

Do you research and you’ll find approximately 150 thousand legal aid certificates issued by Legal Aid Ontario annually, with a vast majority of them in criminal law. Fewer than 3000 lawyers in Ontario, out of 60,000 have accepted at least one (perhaps just one) legal aid certificate each year.

Probably seriously fewer than that number even, so effectively a handful, maybe 2-3 percent of Ontario’s lawyers, are doing the bulk of the work of representing criminal accused persons on legal aid – a big chunk of those accused. The administration of justice is carried on our shoulders.

This handful of dedicated, underpaid, undervalued and exhausted lawyers are literally carrying the weight of the entire system on our backs. We have seen what happens when we stop doing the work. 2009 saw that boycott and it wasn’t pretty.

SO HERE IS MY ADVICE

Next time you encounter a “legal aid lawyer”, take a minute to thank us for our service.

Welcome us into the litigation.

Think about what we are advancing on behalf of the vulnerable person as vindicating their rights.

Remember that if we were not there, your job would be much harder.

And check your privilege.