“A community is like a ship; everyone ought to be prepared to take the helm.” Henrik Ibsen
To practice law in Ontario requires membership in the Law Society of Ontario (LSO). The LSO governs Ontario’s lawyers and paralegals in recognition of its duty to protect the public interest, to maintain and advance the cause of justice and the rule of law, to facilitate access to justice for the people of Ontario, and to act in a timely, open, and efficient manner. Membership does not presume but rather defines shared interests, values, privileges, and responsibilities. It has done so since 1797 by ensuring that Ontario’s lawyers (and subsequently paralegals) meet the highest standards of learning, competence, and professional conduct.
The Law Society Act, RSO 1990, c L.8 may provide the regulatory framework, but within the formal framework structured around and governed by the LSO, there lies a community we refer to traditionally, affectionately, and meaningfully as the Bar. The Bar is both governed by, but helpfully and philosophically independent of the LSO, as good or as bad as the disposition of its members, hardly homogenous and hopefully open to many views, but understanding of a common interest. The Bar can survive the rancour evident in some instances during the recent election of Benchers of the LSO, only because this is true.
It is understood that every type of community can be classified by the purpose that brings the members together. Communities may be defined by the sharing of a common interest, by a shared interest in bringing about change, by geographic boundaries, by a common profession or the undertaking of the same activities, and by the extenuation of external events and situations.
Does it matter whether the Bar delineates and remains a community? It does, and this is why:
A community is a social unit (or group of living things) that shares something in common, such as customs, identifying characteristics, values, beliefs, or norms. The quality of a community is often dictated by the degree of engagement and happiness individuals can draw from community interactions. Communities are based around networks of social relations that extend beyond one’s immediate family, and they are thought to have some longevity. That is, members of a community stay in regular social contact with one another.
Positive communities are groups that inspire their members in ways that promote a sense of self-discovery and group connection, encourage members to express their beliefs and values and build relationships with others. Involvement in positive communities can have a tangible impact on individuals by helping them avoid negative outcomes, such as poor mental health, by providing a sense of belonging and directing members’ attention and energy toward beneficial activities. A community will define some or all of the following: a shared identity, a shared purpose, common objectives, shared interests, and a common behaviour. Finally, involvement in positive communities can bring about positive change in the broader environment.
Business or Profession
It was once and perhaps is still in some circles debated whether private practice is a business or a profession. While this is a question on which well-intended commentators may differ, it is of course both. But it is more. Members of the Bar have a monopoly on the provision of legal services, and the provision of those services and the amount charged for those services involves a public interest component. Members who practice at the Bar have a distinct and significant privilege of self -defining their practices, and for the most part defining the way in which their practices are governed.
But this privilege is not immutable. Our ability to self-direct how we practice is increasingly fragile. The key to maintaining this privilege is to understand, always, that it rests foremost on how we serve our clients, and in providing that service, on how we interact with our colleagues and staff in the firms where we practice, as members of the Bar, as practitioners, and before the Courts. Law firms enjoy their status and the ability to organize in order to engage in the practice of law through their member lawyers, enjoying the benefits of the privilege by osmosis. Their responsibility to respect it and to protect it is no less germane. It is in fact where the importance of the distinction between a business and a profession lies. The business is purposed in capitalism, the making of a profit. The profession is purposed in public service. The struggle between them is a constant, and our community defines both.
It may be that the distinction is becoming less and less meaningful among the members of this community of interests, that we are succumbing to profit taking and competition, possibly even more so in “post -covid” times. But I hang on to the hope that in the leveraging of our practices, the push for a competitive edge, the recruitment of young lawyers and the movement of lawyers of all vintages between our firms we are not yet akin to baseball players or baseball teams.
Protecting the Privilege
To protect and preserve the privilege that underwrites the freedom of self-direction in the private practice of law, members of this community must appreciate that as lawyers they are not only responsible for thinking about how they will practice, but also for thinking about how the firms they run or belong to will practice. This includes thinking about the environment (culture, values) which they and their firms observe, which, I emphasize, extends to thinking about their colleagues and peers with whom they join in fellowship, in particular the more junior among them.
The Rules that Bind Us
I refer here in particular to Chapter 2 Integrity and the accompanying Commentary of the Ontario Rules of Professional Conduct, which I summarize as follows:
… a lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity, as well as a duty to uphold the standards and reputation of the legal profession and to assist in the advancement of its goals, organizations and institutions. Integrity is the fundamental quality of any person who seeks to practice as a member of the legal profession. Public confidence in the administration of justice and in the legal profession may be eroded by a lawyer’s irresponsible conduct. Accordingly, a lawyer’s conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety. Dishonorable or questionable conduct on the part of a lawyer in professional practice will reflect adversely upon the integrity of the profession and the administration of justice.
Finally, as the commentary stresses, a lawyer has special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society and in the administration of justice, to protect the dignity of individuals. Conduct in breach of this principle amounts to “conduct unbecoming a barrister or solicitor” and means conduct, including conduct in a lawyer’s personal or private capacity, that tends to bring discredit upon the legal profession including, for example taking improper advantage of the youth, inexperience, lack of education, unsophistication, ill health, or unbusinesslike habits of another.
As members of a community, of the Bar, we are all in the same boat. We must, all of us, be prepared to take the helm.