Come gather ’round, people/Wherever you roam/And admit that the waters/Around you have grown – Bob Dylan, The Times They Are A Changing
In our collective efforts to serve the interests of our clients, our profession has at times struggled with a tension (often uncomfortable) between the art of civil persuasion and the tug of forceful and fierce advocacy. Over the years, this tension has attracted notice and comment from leaders at the bar, our professional associations and our courts.
I suggest that in our practices, and of course almost everywhere else, the disruptions of COVID-19 have added vigour to the need for civility. No matter what law we practice, being uncivil, inefficient and wasteful of time and resources is a luxury we can no longer afford (if we ever could). For all of us, but certainly for our junior colleagues who will lead the way, patience and tolerance for new ways of getting things done are the order of the day. At every level of our professional lives, in everything we do whether as solicitors or barristers, how, where and when we work will never be the same. The times are indeed changing. And in the COVID-19 era, we know that many changes will not reverse any time soon, if at all.
We also know as members of a privileged profession that a tectonic change has occurred in access to justice, expressed most recently in preparations for an online meeting of the OECD Global Roundtables on Access to Justice:
“The COVID-19 crisis is causing large-scale loss of life and severe human suffering globally. It has also generated a major economic, social and political crisis, which touches every aspect of people’s lives. Vulnerable and disadvantaged groups will be impacted more severely, especially those in precarious employment or financial conditions, those living in poor quality housing, the socially isolated and those already struggling with low subjective well-being or mental health conditions. In addition, the COVID-19 crisis puts women and children at further risk of violence as it restricts women’s ability to deploy their usual safety strategies; for example, not being able to stay with relatives or send children out to play when the level of abuse is escalating…
Increased vulnerabilities are in turn likely to lead to a surge of legal needs, especially for SMEs [small and medium enterprises], entrepreneurs, middle income and disadvantaged groups, which may in turn increase the pressures on social and economic systems, thus adding to the vicious cycle. As such, any pathway for recovery must integrate accessible and people-centred justice systems as core pillar, as legal and justice services play a major role in restoring economies, social cohesion and confidence in institutions.” (emphasis added)
As lawyers responsible for our own careers as well as the careers we are shaping, we must reflect on this message and play our part.
Playing our Part
In reacting to the health crisis, the way in which we communicate with colleagues and clients, other members of the bar, relevant institutions and the courts has also fundamentally changed. Three of many easy examples:
- we now work from home at a rate never before contemplated by our profession or any other
- we commonly “meet and work” with one another through transmission media
- “virtuality” is our newest refrain; we have virtual meetings, virtual execution of our work product, virtual attestations, virtual contracting, virtual closings, virtual attendances on clients, virtual appearances, virtual professional development programs, virtual court and judicial services.
And, we are now masked, yet another demarcation, another form of disintegration and reintegration of the means and media through which we interact, another form of social exclusion.
We are beset with these and other new or newly vibrant ways of effecting or conveying something, with a new or certainly upgraded force and effect in achieving our goals, meeting our business and personal deadlines, and maintaining our contacts with and fulfilling our duties to our clients.
To our unbridled amazement, these changes occurred over a remarkably short period of time, and came to us without any antecedent. We are in an important sense pioneers, or guinea pigs, who “can see the footprints in the virtual sand”. (Rush – Virtuality)
Accepting the tragedy inherent in the genesis of these changes in how we communicate with one another and how we practice, the changes themselves are not necessarily a bad thing. Many of them are now or likely to be recognized ultimately as perhaps a good thing. But, and it is an important but, with the changes to the way we practice comes a responsibility to work at all levels more efficiently, effectively and courteously than ever before. That this is so becomes more evident when we dare contemplate that our thoughts of a post-COVID-19 transition may mutate into a reluctant acceptance of a chronic COVID-19 reality.
We play our part, which I stress includes ensuring that our junior colleagues understand the important and leading role they can play, by accepting these changes in inter-personal dynamics for what they are. We play our part by recognizing that the legal and justice services we provide, and the public interest we manifestly protect, demand
“that matters entrusted to a lawyer be dealt with effectively and expeditiously, and fair and courteous dealing on the part of each lawyer engaged in a matter will contribute materially to this end. The lawyer who behaves otherwise does a disservice to the client, and neglect of the rule will impair the ability of lawyers to perform their function properly.” (Commentary 1 to the Code of Professional Conduct 7.2-1)
We play our part, each and every one of us, by recognizing the fundamental changes in inter-personal dynamics that COVID-19 brings with it. They are not all necessarily new, but they are newly embraced.
We play our part by acknowledging the link between the worldwide social crisis identified by the OECD, and the need for professionalism and consideration on the part of the legal profession.
And we play our part by setting a tone that both supports and accommodates how best to move forward in these changing times.
When applied as a salve, tolerance is an important characteristic in our society, addressing issues large and small. But with the changes wrought by COVID-19, there will be less tolerance, less patience at all levels for unnecessary positions and steps, for lack of efficiency among counsel, for a lack of courtesy, collegiality, communication and collaboration in any practice. There will be the same lack of tolerance for one-upmanship or games playing. We will have to be sufficiently self-aware to up our game, and while doing so, to more fervently than ever before set an example in our offices and everywhere else, for those who follow.
Robert Allen Zimmerman would expect nothing less.