Legislative Watch, August 2015

 

The Legislative Watch

The 4th Session of the 40th Parliament of British Columbia had an unusual summer sitting in July of 2015.  The government’s intention was to pass legislation concerning the proposed LNG industry.  The government also introduced a late bill to amend the powers of the Ombudsperson.

Although these bills may not be of direct consequence to most trial lawyers, it has caused me to consider what implications the LNG industry may have for lawyers in the province, and more generally what is happening in our profession.  Following the discussion of these bills are some observations concerning the demographics of our profession that may be of interest.

The New Legislation

The Ombudsperson Amendment Act, 2015 (Bill 31) was introduced by the government after they requested the new Ombudsperson (Jay Chalke) to investigate the firing of a number of Health Ministry workers who worked with medicine approval issues.  Tragically, one of the fired employees committed suicide, and most of the others have ultimately received compensation and an apology from the government.  A previous investigation by the government could not determine who had fired these people, let alone why. The Act overrides the privilege of confidentiality supplied to any person by another enactment in relation to an investigation of the Ombudsperson referred by the Legislative Assembly or any of its committees. The hope is that Mr. Chalke will be able to identify what happened, and make recommendations so that a similar incident will not happen in the future.

The Liquefied Natural Gas Project Agreements Act (Bill 30) provides a framework for Petronas and potentially other proponents of LNG facilities to build such facilities, with the government agreeing to bind itself and future governments to limiting the taxes payable by such proponents. The current provincial government was elected two years ago with a platform of raising billions of dollars in revenue for the province through the development of a globally competitive LNG industry in British Columbia. The model for success was the Heritage Fund of Alberta, with the idea that this new LNG revenue stream would pay for a great deal of social programs and assist in the development of the more rural areas of BC in a positive fashion.

We all are aware that BC sits on top of oceans of natural gas. Most people are supportive of developing that resource, but only if done responsibly and on the proper terms and conditions. Some are concerned about a variety of environmental issues, including carbon-creation and the resulting global warming; others are concerned that the concessions in this bill to the potential development companies are too great; and yet others are concerned that BC’s opportunity to be first to market has passed, that countries such as Australia have the edge due to geography, and that there will be no significant market for LNG in the foreseeable future.

As I was contemplating the potential effects a successful LNG might have on our province and profession, my thoughts began to focus on what is happening in our profession, and what follows are some of these thoughts.

Some Comments on the Demographics of the Legal Profession in BC

Whether or not the LNG industry brings the billions of dollars to the provincial coffers that the government predicts, changes are coming to our province and our profession.  It may be useful to start with a simple outline of where the profession is currently in terms of demographics.

Using very rough figures, and based on the latest Law Society information from December 2013, there are about 11,000 practising lawyers in BC, approximately 1/3 women and 2/3 men.  31% of all lawyers practise civil litigation.  The next largest group practise corporate law (22%).

Over 53% of lawyers practise in firms of less than 5 lawyers, and the majority of them are single practitioners.  Less than 15% of lawyers work in firms of over 50.

Although in recent years as many (or more) women than men have been called to the bar, women drop out of practice more often, and the Law Society and others have attempted to deal with this in a variety of ways, none particularly successful.

Geographically, over 55% of lawyers practice in Vancouver County, over 12% practise in Westminster County, almost 10% practise in Victoria County, and almost 10% practise outside of BC.

The entire remainder of the province is served by about 1,400 lawyers, or just 13% of all lawyers.

We are told that lawyers in smaller communities tend to be older, on average, than those in Greater Vancouver.  A significant number are reaching, or have passed, normal retirement age.  The Law Society has been commenting for several years on the difficulty such lawyers have finding young lawyers to take over their practices. The Law Society has even implemented programs to encourage law students to complete their articles in smaller communities.

If LNG is going to produce the economic impact that is predicted, we should, in theory, witness a disproportionate amount of job and wealth creation in those rural communities located near LNG sites compared to urban centers. At the same time, there will be significant pressure on the government to provide more services to those communities from whence the wealth comes. The logical corollary for the profession is an increased need for legal services in rural communities that are already underserved.

Part of the problem, as I see it, is that there is a pervasive belief by law students at UBC and Victoria and perhaps elsewhere that if you are not practising law in a large law firm in downtown Vancouver, you are not really practising interesting and lucrative law, but instead dealing with mundane issues and just scraping by.

Of course, most of us know that not to be the truth. Whatever positive comments you can make about large law firms, they do not have the monopoly on interesting cases, nor clients that need legal assistance, nor financial success.

The late Dean George Curtis of UBC told me that he used to informally keep up with the financial success of graduates, and found that there was a curious inverse relationship between academic success at law school, and financial success as a lawyer (with exceptions, of course).

There is also an old joke that asks what do you call two lawyers sitting in a school gymnasium on a Friday night?  The answer is “the heart of a community”.  Lawyers provide an immense amount of volunteer work, particularly in smaller communities.

What this all means, in my view, is that we as trial lawyers have to do a better job of educating law students and young lawyers that there are wonderful opportunities for young lawyers in small firms, in smaller communities, and particularly in communities distant from Vancouver.

Large Vancouver law firms do not have a monopoly on good counsel.  There are excellent counsel in small firms and in small communities, and the financial as well as professional rewards can be greater in such firms.

There is a large demographic change coming.  Those of us who are baby-boomers need to offer help and mentoring to the millennials who are coming into our profession.  Some of our fellow lawyers are concerned that we are losing the heart of our profession by focussing increasingly on fees and technology, and getting away from the true nature of our profession, which is helping those that require assistance.  I agree that there is a risk of this, but if we as trial lawyers make a concerted effort to move forward with the times, keeping the best part of our helping profession, we can make a positive difference to our province as the winds of change blow.

A Modest Suggestion

Next time you are discussing matters with a law student or young lawyer or another lawyer of your vintage, talk to them about your experience and your hope for the profession, and tell them why you are practising law, and ask them what it is that they want to contribute to the profession and our community.  This is a discussion which we need to have.

Article by Ian Aikenhead, Q.C.

Used with permission of the Trial Lawyers of British Columbia, as previously published in the Verdict.

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