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REGIONAL WRAP-UP PRAIRIES old lAwyers Never reTire, They JusT yers never retire, F ormer Manitoba justice minister Al Mackling is proving one cli- chéd lawyer joke true: Old law- they just lose their appeal. Mackling is battling the Law Society of Manitoba for the right to act pro bono for a Winnipeg mother in a custody case even though he's been out of the game for decades. The 83-year-old lost his law society appeal in late August and says he may ask the courts for a judicial review. "Has the Manitoba law society the right to deny a retired lawyer, who has never been the subject of disciplinary proceedings, the right to volunteer his legal knowledge and experience without compensation on behalf of a litigant who had previously appeared unsuccessfully in court with- out counsel?" Mackling asked. It has, ruled the appeal panel in a decision a University of Manitoba law professor says was likely correct. The law society argued that it has a legislative obligation to ensure anyone claiming to be a lawyer meets strict standards of competency and conduct, even if a lawyer only wants to work on one case for free. A practising cer- tificate comes with liability insurance, a complaint process, and a system of mandatory continuing education to keep lawyers' skills current — all part of the system to protect the public from unscrupulous or inept lawyers. Mackling wants to help a mother fighting to regain custody of her three children in a case Mackling is con- vinced involves a miscarriage of justice. The woman represented herself during a long and complex custody hearing. Since then, she has been unable to get a lawyer and was denied legal aid. In July, the law society's membership director ruled he could not confidently assess Mackling's competency unless Mackling studied up on bar exam materials, passed a qualifying test, and agreed to be supervised for a year by a senior lawyer. In a hearing Aug. 22, an appeal panel of the society's admissions and education committee agreed. Mackling called those conditions prohibitive. Darcia Senft, the law society's general counsel, says Mackling's generosity and good intentions are not in question. But she notes Mackling has not practised law for 25 years and much has changed since then. She also says it's not possible under the law society's legislation to "dabble" in underfunded. But Fishman says allowing retired lawyers to make cameos in court, espe- cially in family law, might make the situation even worse, and it's difficult to regulate on a case-by-case basis. "In my view, the skill set required is com- plex and subtle and dabblers should be discouraged," he said. Still spry at 83, Mackling emerged from retirement in May to run feder- ally for the NDP against Public Safety Minister Vic Toews in one of the prov- "A lot of lawyers never quit. To have someone in Mr. Mackling's position — his mind is still good, his heart is in the right place — you'd think if there were more of them. . . . " UNIVERSITY OF MANITOBA LAW PROFESSOR ANNE MCGILLIVRAY the law or restrict practice to only one area, such as family law. U of M law professor Anne McGilli- vray says it was the right call. She says granting a practice certificate to a law- yer whose skills are in question could be seen to be licensing incompetence, which threatens to erode the public's trust in the profession and its ability to self-regulate. "It protects us, but it also protects the quality of service," says McGillivray, who specializes in professional responsibilities. Winnipeg family lawyer Len Fish- man says there's a lot wrong with the current system. An increasing number of needy clients are representing them- selves in family court, and they are often ill equipped, incapable of dispas- sionate analysis, and tend to waste a good deal of the court's time. It's nearly impossible for lawyers to help a client with just part of a case — an affidavit or a cross-examination, for example — leaving many clients entirely on their own. And legal aid programs are 10 OCTO BER 2011 www. CANADIAN Lawyermag.com ince's most conservative rural ridings. As attorney general in the Ed Schreyer government, Mackling helped create Manitoba's first legal aid program and its first human rights commission. He later served in NDP premier Howard Pawley's cabinet. McGillivray says Mackling's case raises a good question for law societies all over Canada: Is there a way to mobil- ize a cadre of retired lawyers to do the kind of pro bono work they didn't have time to do in practice, especially in the challenging area of family law? "A lot of lawyers never quit," says McGillivray. "To have someone in Mr. Mackling's position — his mind is still good, his heart is in the right place — you'd think if there were more of them. . . . " Mackling cannot resign from the law society and advise the woman as a private citizen. Once a lawyer becomes a member, the only way out of the law society is to die or get disbarred. — MARY AGNES WELCH maryagneswelch@gmail.com l o s e T heir A PP e A l