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Lawyers must remain essential service as long as reasonably possible | Arthur Zeilikman

Wednesday, April 08, 2020 @ 11:39 AM | By Arthur Zeilikman


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Arthur Zeilikman
It would be a serious undertaking to tally all of the clichés and negative stereotypes that exist about lawyers and their seeming dispensability within society. Shakespeare’s oft-quoted line from Henry VI — "The first thing we do, let’s kill all the lawyers” — usually comes to mind as the most infamous and callous of such satirical jabs. Whatever the true intent behind the incitement, one thing is clear: the question of a lawyer’s utility always makes for a lively conversation.    

This came to mind in recent weeks when I was surprised to see many of my colleagues (most of whom I hold in very high regard) express doubt about whether our profession would make it to the list of essential services in Ontario that would be exempt from closure due to the COVID-19 pandemic. Perhaps this was the case because, along with other non-essential businesses requiring only Wi-Fi connectivity and access to the World Wide Web, most lawyers would be able to work remotely just as well.    

Indeed, many would say that numerous other services also made it to the government’s (now ever-shrinking) list, so the designated spot and its subsequent “celebrating” would seem rather embarrassingly self-congratulatory. And yet, the fact that the legal profession constitutes a core part of Ontario’s political ethos cannot be overstated.

That is why the provincial government’s initial and specific designation of lawyers as “essential” should be commended not only by the lawyers who got to keep their jobs but by society as a whole. Curiously, the word “lawyers” was later removed from the list, however, “professional and social services that support the legal and justice system” still remain.

Presumably, we are good (for now). I would propose that the aforementioned designation —whatever its formulation — underscores a larger value statement: we are a society of laws and should remain as such as long as possible. The rule of law is too fragile and precious a thing to be left unchecked and “rights” will become but a commonly shared fiction if not actively pursued.   

Although as a lawyer I would never presume to claim the same level of importance as, say, a firefighter or a front-line nurse, the preservation of a profession that is responsible for the running of our legal system cannot be casually overshadowed by matters of immediate concern.

Admittedly, when true catastrophe strikes, self-preservation and the protection of the polis have to, by necessity, put other less pressing considerations on hold. Yet we must be very careful when standing at the crossroad of such a potentially irrevocable judgment call. That is why we must ensure that our society does everything in its power to safeguard the integrity of the legal process and the occupations that animate it.

Civilization’s values are not tested during periods of prosperous contentment but in times of peril. It is during a time of widespread emotional unrest when institutional level-headedness must be maintained and jealously guarded.

That is why access to legal services must be sustained as much as conceivably possible. Failure to do so is a concession a free and democratic society cannot make absent extremely dire circumstances. Quarantine and social distancing do not put the passing of time on hold; nor do they freeze the unfolding of legally consequential events. Interfamilial disputes will continue to take place; contracts will doubtless be broken; and, crime will not magically dissipate.

Throughout all of this, the ability of counsel to represent and provide people with independent legal advice is of the utmost importance. To that end, a lawyer’s ability to work remotely does not suffice as a matter of principle. Not only does such a reliance naively surrender us to the whims of technology, it is presumptuous to say that all people — no matter their social background or age — have equal and ready access to such a technology in the first place.   

The COVID-19 pandemic is a trying time for Canadians and the rest of the world. Many are scared for their health and financial well-being. Many are unsure of what the future may bring.

However, a people’s resilience is often underestimated in the face of calamity and while things may seem strange now society cannot put the legal system on a shelf to be picked up once things are “back to normal.” Members of the legal profession play a pivotal role in maintaining structure in an otherwise unprecedented and unpredictable time.  

I commenced by quoting Shakespeare and will end by slightly paraphrasing the words of the less iconic (but equally important) founding father and second president of the United States, John Adams. A lawyer by trade and, although a patriot, Adams was first and foremost known for his unapologetic stance on the rule of law above all else. Thus when tasked with defending a group of British soldiers together with their captain in a high profile case, Mr. Adams said that counsel is the very last thing a person should lack in a free country.

Arthur Zeilikman is a labour and employment lawyer at Zeilikman Law in Vaughan representing both and employers and employees. He can be reached at 905-417-2227 or arthur@zeilikmanlaw.com

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