Ill Winds That Blow No Good

“It is an ill wind that blows no good.”

~ John Heywood

 I recently wrote what I thought was a rather nifty article about the ills in the legal profession, and concluded, as I often do, that many of them  can be traced to a culture of greed in Big Law. I got that part past my editors without a problem.

I then went on to say that law schools are complicit. That is where my editors decided to take a stand. They thought that if I was going to make such a scurrilous allegation, I needed some proof. Can you believe that? They actually wanted me to do research to back up my opinions, something which I abhor doing. (Frankly, I stopped doing research as soon as I hired my first Articling Student, and that was many years ago.)

Quite apart from my aversion to actually doing work in my retirement, it seemed to me that the truth of my theory was so obvious that research was unnecessary, but I am learning that one has to sacrifice for ones’ art. So, I grudgingly did some superficial research of the depth and precision that would have had me firing an Articling Student who presented it to me.

Here is what I found:

1. At University of Toronto Law School, you can participate in the legal clinic at the Fasken Building, speak to the professor who was awarded the Osler Chair, or compete to win the McCarthy Tetrault Cup in the mooting competition.
2. Meanwhile, at Osgoode Hall Law School, you can compete to win the BLG Professional Excellence Award or one of the McCarthy Tetrault LLP Prizes. You can also participate in the IP Innovation Clinic operated in collaboration with Norton Rose Fullbright Canada LLP, work at the Business Clinic under the supervision of a lawyer at Stikeman Elliott LLP or apply for a bursary from the McCarthy Tetrault Foundation.
3. If you search “Oslers” on the University of Toronto website, you will get 19 pages of entries. “McCarthy’s” will get you 14; Blakes 5; BLG 4 and Norton Rose 3.
4. Try it on Osgoode Hall’s website and the  numbers are Norton Rose – 3; McCarthy’s 2; Osler – 2; and 1 each for Blakes and BLG.

It was pretty early in my legal career that I was taught to “follow the money.”  So here is what the path looks like to me:

1. In 2024, average per equity partner earnings at the largest U.S. law firms were over $6m. In Canada, they were $1m. Not nearly as outrageous as in the U.S., but still enough to buy groceries.
2. In order to earn more than anyone other than Kings and Sultans, Big Law lawyers have to do two things:
   1. charge exorbitant rates to their clients (the highest now being well over $1,000 per hour) which gives us the affordability crisis; and
   1. employ Associates to work many, many, hours, which gives us the mental health crisis.
3. As illustrated by my less than comprehensive research cited above, Big Law supports Law Schools.
4. In return, Law Schools indoctrinate students to believe that if they do not work for Big Law, they will be failures.
5. They also charge annual tuitions of over $30,000 in some Canadian law schools and over $50,000 in some American law schools.  (Note that it is not particularly expensive to run a law school, since there are no fancy laboratories or equipment – just professors and classrooms. One suspects that the law schools are generating a profit to subsidize other functions of the universities.)
6. Students graduate with large debt and since they must pay that (and do not want to be failures) they flock to Big Law, where they work themselves into mental and physical illness, unhappiness, and divorce, so that the equity partners can continue to make obscene amounts of money. Somewhere along the way, those who survive get a taste for the good life, become equity partners themselves, and the cycle continues.
7. As a result, legal services have become unaffordable to all but medium-sized and large businesses and wealthy individuals. More and more potential clients choose to self-represent in court and seek lower cost solutions.

So, what is the solution?

There is a well-known expression, attributed to several people, to the effect that if you are not a socialist at age 20, you have no heart, but if you are still a socialist at age 30, you have no brain. I was a socialist at age 20 and a capitalist at age 30.  Now, at age 70, I am becoming a socialist again, because it is obvious to me that we have a corporate and law firm culture of greed that is not serving our society well.  And so, I suggest that:

1. we borrow from the income tax system and start basing the Law Society and Law Pro fees on income so that the highest earning members of the profession pay the lion’s shares of the costs, and the lower earning members pay almost nothing;
2. we legislate that Law Schools have to operate at cost or at a very small mark-up, and cannot  charge lawyer wannabees a fortune to fund other more expensive faculties;
3. through the Law Society, we tax the lawyers who make millions to lower the cost of tuition or pay off student debt for those who work for firms that earn less, make legal services affordable to the public, and have healthier working environments; and
4. we find ways to encourage lawyers to work in lower-overhead firms while earning an adequate living and working tolerable hours.

The possibilities become endless if we are just willing to acknowledge that capitalism has run amok in the legal profession, the culture of greed has made life intolerable for clients and lawyers alike, and that a dollop of socialism is not the worst thing in the world.

We need to take a serious run at Big Law and Law Schools, and probably Law Societies as well.  How hard can it be to find some serious politicians who are willing to tell the Law Societies that they have to fix the problem or the privilege of self-regulation will be taken away from them?

Let Big Law come to understand that when you are earning millions of dollars per year, you can give some of it up to create a system which will facilitate the provision of legal services to those who cannot otherwise afford them and allow lawyers to choose healthier environments to work in. And while they are at it, they can fund an education campaign at the Law Schools to let students know that lawyer life does not begin and end in Big Law.

Do you feel that breeze? I dare say that I am suddenly feeling some ill winds coming my way for having the audacity to make these outlandish suggestions.

This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.