Return of King’s counsel designation not recognition bar needs right now | Anita Szigeti

By Anita Szigeti

Law360 Canada (July 13, 2023, 11:13 AM EDT) --
Anita Szigeti
Anita Szigeti
The news buried in a press-release late on a Friday afternoon before a long weekend that the Ontario government is bringing back the King’s counsel (KC) designation was not well received by many of Ontario’s other 57,000 lawyers, who were not on the list of nearly 100 new KCs.

While the long list of new KCs certainly includes quite a few lawyers who clearly deserve special recognition for their commitment to access to justice, their valiant defence of the rights of vulnerable persons and their exceptional contributions to the profession and the community, it is not at all clear why or even whether many others deserve such accolades.

Many prominent lawyers have spoken out expressing concern that the sudden return of the King’s counsel appointments was something nobody wanted and that many selected appear to be political patronage appointments. In particular many are troubled by Caroline Mulroney’s inclusion on the list, given that she was “administratively” called to the Ontario bar only a few days before receiving her KC. Many of us have noted that this process makes a mockery of the experiences of all other lawyers in Ontario who have to article and pass the bar exams once they graduate from Canadian law schools. It is an even bigger slap in the face to internationally trained lawyers who are required, at great personal expense, to jump through many other hoops and overcome hurdles that Ms. Mulroney was exempted from due to her previous role as attorney general.

While I respect and congratulate those new KCs who worked hard and deserve special acknowledgment, what I want to address here is the collateral adverse impact of hollow honorifics bestowed upon those who have not truly distinguished themselves through hard work and meaningful contribution as practising lawyers. It may well be unintended, but the fact is that when governments and prominent organizations hand out awards based on who you know or who has richer resources, rather than on what or how you have contributed, this has serious collateral consequences. It is yet another way to demoralize an already tired, jaded and struggling Ontario bar whose members have been through so much in the last few years, trying to shore up the administration of justice. And make no mistake, we are losing the best and the brightest from the practice of law in droves, every day.  What we need to do is respect and reward those we are most at risk of losing, because they are constantly ignored.

The administration of justice, particularly criminal justice, at the heart of our democracy, where everyday Canadian citizens charged with offences are at grave risk of losing their liberty and up against the towering power of the state, depends in very large part on the tireless, fearless work of criminal defence lawyers. In particular, those who accept legal aid certificates, women and gender diverse lawyers, new and racialized lawyers and those who are struggling with their own mental health and addictions issues as a result of the extraordinary pressures they’re under, working at 150 per cent capacity round the clock. These are the unsung heroes of Ontario’s practising bar, who deserve special recognition, but are too often not getting even basic respect or equal treatment in our justice system. It’s high time we recognize the efforts, contributions and accomplishments of this rarely celebrated and largely invisible group — those toiling in the trenches.

There are approximate 57,000 lawyers licensed to practise in Ontario. Of those, barely 3,000 accept legal aid certificates at all and that includes all areas of law. Even fewer do so regularly, defend clients in criminal law or fight for the rights of those detained simply because of mental health issues. Those lawyers acted on 100,000 matters in 2021-2022. That's an enormous amount of work done by less than five per cent of Ontario lawyers. Very few lawyers are prepared to do this incredibly stressful, back-breaking work of representing vulnerable low-income Ontarians for a fraction of the compensation they might reasonably charge to privately paying clients.

Lawyers in private practice with predominantly or exclusively legal aid practices are working crushingly long hours and donating hundreds of hours of their time annually, often dozens on each file. There has been no raise in the tariff maximums or hourly rates for legal aid in eight years. Even while some improvements on that front may be coming, there is no hope of parity with what Crown counsel get paid or disability benefits, pensions, paid vacation — all the things government and big firm lawyers have that the legal aid small firm or sole practitioner does not.

Women in criminal defence and young, racialized lawyers are even more acutely affected by the chronic underfunding of legal aid. Add to that, the profound disrespect that defence lawyers, especially women face day in and day out, and the result is an exodus from the legal aid defence bar, on whose shoulders the fair administration of justice effectively rests. Those who bravely choose to stay and soldier on tend to develop — in disproportionate numbers — serious mental health and substance use issues as a direct result of trying to cope with constant, extraordinarily high stress levels and vicarious trauma. The defence bar is struggling mightily and needs structural change and supports targeted to their specific needs and unique circumstances.

In the immediate moment, one thing we can do is appreciate and recognize the heroic contributions of this small but vital group of lawyers. This means giving them the profound respect they’re due in the ordinary course of the litigation of their cases in front of Ontario’s tribunals. It means recognizing their value by reasonable rates of compensation through government funding of legal aid. And if we’re handing out awards, these are the everyday heroes who deserve special recognition for their immense contributions. Not friends or supporters of the government of the day, but the lawyers who are exhausting themselves to ensure that ordinary citizens and among them the poorest and the most marginalized, get professional representation and a fair trial. Without these lawyers, the administration of justice caves in on itself.

Anita Szigeti is the principal lawyer at Anita Szigeti Advocates, a boutique Toronto law firm specializing in mental health justice litigation. She is the founder of two national volunteer lawyer associations: the Law and Mental Disorder Association and Women in Canadian Criminal Defence. Find her on LinkedIn, follow her on Twitter and on her blog.

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