Law Times

Law Times • sepTember 28, 2009 Conservative ad tactics full of ironies OTTAWA — The Con- servatives' advertising controversy broke like a tsunami across the coun- try last Monday, splash- ing all over the newspa- pers. According to reports, the Harper government spent five times more public money on partisan TV ads plugging its economic plan than it did on warning Canadians about the H1N1 flu virus. That was $34 million versus $5.4 million. The Conservative ads told Canadians, "We can't stop now," which is pretty much the same thing Prime Minister Stephen Harper has been saying in his pre-election speeches. They then directed viewers to a government web site plastered with 40 photos of a smiling, happy Harper. When reporters pointed out the Harper portrait gallery might be just a bit much for an "information" ad, 33 of the 40 pictures suddenly disappeared. Spokespeople in the prime minister's office then began saying they had never existed. That was until another reporter pulled out a photocopy The Hill By Richard Cleroux of archived web pages from the previous week. At that point, Harper's people had nothing more to say. The irony was delicious. The Conservatives came to power in 2006 on a wave of public anger over the Liberal sponsor- ship scandal in which public money went to promoting the governing party. "Plus ça change à Ottawa," Bloc Québécois MPs, salivating for an election, began telling constituents. The New Democrats quickly chimed in, "What do you expect from the old par- ties?" For Liberal Leader Michael Ignatieff, the ads amounted to "contempt" for Canadians, while by Wednesday, Google news listed 330 news articles on the controversy. Somebody out there cared. The Conservatives reacted by digging up anti-flu TV ads from the Ontario government, something that highlighted the second irony: Harper's ad tactics never would have occurred in Canada's most populous province. Since 2004, Ontario has had an agency that applies a strict law in screening provincial government ads — especially those coming out in the last few months before an election — to ensure that boosterism doesn't creep in. In Ontario, an ad tell- ing people what a great job the government is doing on the economy, and how this is no time to stop, would hardly rate as a public information message. Forty photos of Premier Dalton McGuinty? Forget about it. The federal Liberals quickly picked up the comparison to Ontario last week. Having absolved themselves of their own adscam scandal, at least in their own minds, they began push- ing for federal legislation similar to that in Ontario. Liberal MP Martha Hall Findlay encapsulated it: "Hey guys, you're spending all this money to promote yourselves. Maybe some work on the prevention of H1N1 would be helpful." The trouble is that the flu ad the Harperites got from On- tario is as dull as dishwater, telling people how to wash their hands and suggesting other useful infection prevention mea- sures such as consulting a doctor. An Ontario Ministry of Health and Long-Term Care com- mittee produced the ad, which almost makes you wish it had used the Conservatives' line and changed it to something live- lier like "Stop the flu now!" Meanwhile, the sort of people who used to credit Conser- vatives with being wise with our money began having some- thing to say. According to Gerry Nicholls, a former Harper colleague at the National Citizens Coalition while he took time off from politics, "people see this as an abuse of tax dollars." Not if you're a Conservative prime minister trying for a majority, Gerry! As a result, the third irony is this: When Harper and Nich- olls were at the National Citizens Coalition together, the cur- rent prime minister used to rant all the time at the Liberals for doing the sort of thing his own government got caught doing last week. According to Nicholls: "When he was at the NCC, he used to denounce these kinds of ads all the time as being improper. I find it disappointing that even under his government they're doing this kind of stuff." But the Liberals were in power back then, Gerry. Nicholls scored better when he said we should have a fed- eral agency monitoring government advertising. Now you're talking, Gerry! But hey, isn't that big government? LT Richard Cleroux is a freelance reporter and columnist on Parlia- ment Hill. His e-mail address is richardcleroux@rogers.com. www.lawtimesnews.com COMMENT PAGE 7 More lawyers won't fix access to justice problems BY BRIAN FINNIGAN For Law Times I read with interest Vern Krishna's column ["A small, but significant, step in access to justice," Sept. 7, 2009] in which he stated that the creation of a new law school in British Columbia, and the resulting in- crease in the number of practising lawyers, will improve access to justice by reducing the costs of legal services. This is an opinion I have heard in the past from a bencher here in Ontario, and with all due respect to those who share it, I believe the idea and its promise are unrealistic. Krishna raised two related but distinct issues. The first is that the number of lawyers who practise in smaller communities seems to be dropping, and that members of the bar serving them are ag- ing. I believe this is a problem but not one that increasing the number of law school gradu- ates will necessarily improve. The second idea is that legal services are too expen- sive and that therefore more competition will help. This is an overly broad and not particularly accurate presumption. For example, in my community the le- gal fees charged by lawyers for real-estate transactions and for estate administration are generally lower than they were when I started practising more than two de- cades ago. The areas affecting ordinary people where costs have increased are limited, mainly in family and criminal litigation. So, it is not costs generally that are high — just costs for specific areas of the law. Moreover, the issue is not that the fees for these areas are unreasonably high; it is that people often do not have the money to pay the costs. Statements by leaders of our profession suggesting that the problem is broader than it is are unhelpful. It should be recognized that lawyers practising family law and criminal law on the whole give good value for the money. We need to inform the public that our services are worth the cost. The issue we need to deal with is how to help people handle the cost. The suggestion that the issue of access to and the price of legal services is simply one of supply and de- mand, and that the market will drive down costs of private practice lawyers if there are more providers, is overly simplistic. Does anyone believe that we could reduce the escalating costs of our medical system by graduating thousands more physicians every year? I don't think so. The same applies to our legal system. On the issue of lawyers choosing not to practise in smaller communities, does anyone think that law school graduates, most of whom face huge debt from their studies, will eagerly seek work there when the fees they can charge are already lower than in larger urban centres? (This is one area where market forces are readily apparent, but the lower costs result not because we have more lawyers; in fact, we have fewer per capita.) New graduates want to earn incomes that will allow them to have decent lifestyles. If they have to work an inordinate number of hours to earn a decent income in a smaller community, they won't choose to work there, particularly when the main alternatives to private practice are very appealing: a lucrative posi- tion in a firm in a large urban centre or a job in the public sector. Neither of those options increases the availability of legal services to ordinary people in our smaller communities. I personally consider it unfortu- nate that many of the young lawyers practising in my community have left private practice to work in the public sector but I have never heard anyone complain about this phenomenon despite the negative effect it has had on the availability of legal services. When I started in the legal field many years ago, Speaker's Corner there were numerous lawyers in our community who had general practices doing criminal cases, family law, and real estate. Their real-estate business was suf- ficiently lucrative to largely carry their practices and subsidize their criminal law and family law work. Now, however, financial institutions and title compa- nies have skimmed off some of the real-estate work and driven prices down. As well, legal aid for criminal and family law work has been cut back or held at low remu- neration levels such that many lawyers can't make a living and therefore refuse or limit the cases they take on. To the extent that family and criminal law costs have risen, it is partly because lawyers can't afford to maintain a practice without charging at least reasonable fees. The government has done nothing to seriously address the legal aid problem. Generalists are disappearing as a result and also because judicial de- cisions on solicitors' negligence impose such high stan- dards that quite competent practitioners are leery of the liability. In turn, lawyers become increasingly special- ized, which is a problem in small communities where there may only be a few practitioners. The law societies' response to the problem is lam- entably weak. Instead of useful initiatives, we have the encouragement of specialization and the sugges- tion that we offer more services pro bono. The latter idea is something we have heard regularly in speeches from members of the bench. But the fact is that those of us who provide legal services to people of modest means already do a great deal of pro bono work. We do so without recognition and don't need to be told to do so. In any event, the provision of legal services pro bono would have little impact on the perceived prob- lem of high legal costs generally. It must be recognized that some responsibility for the higher cost of legal services must rest on our judg- es. Their failure to control the trial process adequately has resulted in unnecessarily lengthy trials and pretrial procedures. Their decisions on solicitors' negligence result in lawyers opting for the "counsel of perfection" even in relatively simple matters, which entails more time on the file and more cost to the clients. So yes, we have a problem with access to justice in this country and with some legal costs rising, par- ticularly for litigation. Our law schools, public sector employers, financial institutions, law societies, and the courts have either exacerbated the problem or are do- ing nothing to find real solutions. But let's not kid ourselves. Simply increasing the number of lawyers out there won't do much to fix the problem. LT Brian Finnigan is a lawyer with Waterous Holden Amey Hitchon LLP in Brantford, Ont. He has practised law for 20 years.

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