The Devil’s Advocate

Published first on slaw.ca

Gavin MacKenzie, Amy Salyzyn and I participated in August in the Ethics Debate at the Canadian Bar Association Legal Conference. Amy moderated the debate. Gavin and I were the debaters. The topic was Should lawyers have a monopoly on the provision of legal services? I argued for the proposition. Gavin argued against.

The general topic was broken up into three separate propositions, each of which was separately debated. My role was to support the first two propositions and to argue against the third.

  • There is no good reason to allow anyone other than lawyers to provide legal services.
  • Professional values will be sacrificed if anyone other than lawyers is allowed to provide legal services.
  • The horse is already out of the barn door. The only practical choice is accept that the monopoly is lost.

As can be seen from previous slaw.ca columns, my position as a debater was rather different from my actual views on these topics. This made the debate more fun. Being an advocate is liberating especially in a formal debate where the goal is to try to both persuade and to entertain.

Being a debater – in formal debates and in real life

But debating from a perspective dissonant from my actual perspective made me think both about the substance of my actual views and about the way that we think about what we think.

Alice Woolley wrote a paper entitled The Problem of Disagreement in Legal Ethics Theory that I particularly admire. Alice both describes different competing theories and explains why the differences actually matter. She notes that each theory necessarily claims that it alone is correct. The paper is well worth a read given the centrality of legal ethics to how we should act, and should be required to act, as lawyers. But this is not the point of referring to Alice’s paper here.

In her paper, Alice writes:

Finally, when legal theorists engage in the task of theorizing, they should be aware that time spent arguing with each other is subject to the law of diminishing returns. While such debate undoubtedly helps to clarify the theoretical landscape, it is much less likely to lead to any theorist to changing her mind, and highlighting theoretical differences does not, in and of itself, do much to illuminate the problems of ethical practice.

When reading this passage originally, I was struck by the observation that intelligent people who have thought deeply aren’t persuaded by debating with each other. Rather, existing views are refined and differences highlighted. This rings true. At least three points follow from this. The first is that debates may well not be for the debaters. The second is that one of the fundamental goals of a democratic society is finding practical ways to resolve differences where agreement does not follow from debate. The third is that we humans are surprising resistant to changing our minds despite good reasons and new facts1.

While Alice wrote about intractable philosophical disagreement, disagreement continues for other more problematic reasons. With increased research and writing about cognitive psychology and cognitive biases, we now have a better awareness of the importance of confirmation bias. When we have an opinion on an issue, we do not receive new information neutrally. Rather, we tend to interpret new information as being supportive of our pre-existing opinions. We don’t wrestle with information that is inconsistent with our views. We hear arguments that support our views less well than we hear arguments that challenge what we think.

Indeed, there is research suggesting that new information inconsistent with pre-existing views is not just ignored. New inconsistent information can be perceived as being threatening and give rise to cognitive dissonance. As reported several years ago in the Boston Globe:

Facts don’t necessarily have the power to change our minds. In fact, quite the opposite. In a series of studies in 2005 and 2006, researchers at the University of Michigan found that when misinformed people, particularly political partisans, were exposed to corrected facts in news stories, they rarely changed their minds. In fact, they often became even more strongly set in their beliefs. Facts, they found, were not curing misinformation. Like an underpowered antibiotic, facts could actually make misinformation even stronger.

It is important for all of us to recognize that our opinions suffer these frailties. No matter how strongly we are convinced (and perhaps especially then), we have to work hard at keeping an open mind – to genuinely challenge ourselves.

Lawyers and their perspective

The issue of the lawyer’s monopoly seems to me to particularly raise these challenges. There are underlying philosophical questions. Important facts are uncertain. Disagreement is understandable and proper. But there also seem to be biases in play

To state the obvious, lawyers have a self-interest in avoiding new competition. Natural anxiety about economic well-being creates self-interest bias. Our personal and our professional identities are tied together. We value what we do and we find offensive that which suggests that we are part of the access to justice problem. We value our contributions to the legal system, and to society more generally, and are offended by anything that devalues those contributions. Even perfectly well-intentioned lawyers may well be affected by these biases. And once opinions are set, it is hard to come to a different view.

As a participant in the broader discussions about regulatory liberalization over the last several years, I have views. Because of this, I am at risk of confirmation bias in considering new information. Having written my thoughts down in slaw.ca columns and elsewhere, I’m at risk of explanation bias, the tendency to be tied to one’s previously expressed views.

This will be no surprise to most litigators. Our common experience is that our cases often seem to get better and better as we spend time on them. It is surprising how often we seem to have the better side of the case. It is often hard to be clear about the frailties of our cases.

The CBA Debate

With all of this in mind, it was interesting to be asked to be a debater on a subject with which I have been much involved, but not on the side that I would naturally take.

Substantively, the framing of the three propositions made three points of central importance. What is the reason for proposed change and is it a “good” reason What are professional values and how could they be sacrificed? Is the die already cast?

The process of preparing for the debate reflected the behavioural psychology described above. At first, I found it a challenge to cogently frame arguments against my own beliefs. Over time, my arguments made more sense to me – especially when I was trying to win the debate!

The first proposition raised the question of what actually motivates the broader debate and, more narrowly, how good must a reason be for it to be a “good reason”. I chose not to address the debate from the lawyer’s perspective on the theory that market incumbents naturally want to maintain their monopolies. That said, I’m inclined to think that liberalization would be helpful defensively given the challenges that the future holds. But that is not the main point and is not particularly persuasive to nervous incumbents.

The main point is access to legal services and unmet legal needs. I necessarily conceded that there are substantial unmet legal needs. My argument was that allowing paralegals in Ontario and allowing alternative business structures in Australia and England has not solved the unmet legal needs problem and that a legitimate goal does not justify change if the change does not advance the goal. I argued that our access to justice problems arise from the way that our system is designed rather than who may participate – the problem is “the coliseum not the gladiators”.

The second proposition raised the question of what are “professional values” and how are they put at risk. I argued that our professional values are obvious; serving clients (commitment and independence, confidentiality and candour) and serving the rule of law and the administration of justice. I conceded that lawyers were no more ethical than anyone else but observed that legal ethics are different than ordinary ethics. Lawyers can be better trusted to honour legal ethics being appropriately trained and, most significantly, being at risk of loss of their livelihoods for professional misconduct. I argued that businesses and capital can simply move on after ethical failure while lawyers can’t. And so, professional values are put at risk by liberalization.

The third proposition raised the question of where we really are as a practical matter. While there is much going on, my argument was that there are substantial and important areas currently served by lawyers that merits cautious protection in the interest of the clients and the society that we serve. Conceding that there is change at the margin, I argued that the centre must be held.

Standing back, I think there is some merit in these arguments. The argument for change is not overwhelming. There are risks in change. There is much that is good that should not be discarded.

But as I said in the discussion after the debate was over, this is an issue where the zealots on both sides have something to say but are wrong as well.

The challenges of unmet legal needs are very real. There is no one magic bullet that will kill the access to justice dragon2. Waiting until we find that one magic bullet means failing to address the problem using the various tools at our disposal. The coliseum is part of the problem as are the gladiators. And there is much to address that isn’t about coliseums at all.

There are advantages in having only licensed lawyers and paralegals. We are indeed easier regulate – given the existing regulator regime which is designed with us in mind. But it is fallacious to claim that modern business is not amenable to regulation. The idea that only lawyers and paralegals can be effectively regulated is nonsense. The reality of the modern regulatory world shows that.

Finally, the idea that the horse is already out the door is another “false binary” – a rhetorical claim that things are all or nothing. There is much that we do that should be honoured. There is much that we don’t do that needs to be done. And there is some of what we do where some new competition would be a good thing.

1 I don’t mean that all disagreements are capable of resolution. Some disagreements are driven by philosophical differences where “right” answers don’t exist. Other differences, especially hard policy choices, arise from factual uncertainty. Sometimes both of these are in play and there are no doubt other legitimate reasons for unresolvable disagreement.

2 The dragon is a canard!

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