Is There a Lawyer in the House? The Declining Role of Lawyers in Elected Office.

• Author: Steele, Graham

Fewer lawyers are being elected to Nova Scotia's Legislative Assembly in recent years. In this article, the author traces the decline over the past decades, provides some hypotheses as to why this trend has occurred, and analyzes what the relative absence of lawyers in a representative legislative body may mean. He cites the 1970s as a turning point for the decline of MLA-lawyers and suspects the shift from part-time work to full-time duties as an MLA, the relatively low salary compared to professional fees, and the poor post-politics job prospects, contributed to making the role less of a draw for practicing lawyers. The author also highlights skills lawyers may bring to the role of an MLA in terms of writing legislation and helping constituents with casework. He concludes by examining the Attorney General and Minister of Justice roles and the potential legal/constitutional questions that may arise if and when this cabinet position and the deputy minister position are occupied by non-lawyers.

There is a common perception that lawyers dominate our elected assemblies. It was true at one time, but it is not true today.

In the May 2017 provincial general election in Nova Scotia, for example, the voters returned only two lawyers to a legislature with 51 seats. That is a post-Confederation low, both in absolute numbers and as a percentage of the seats.

This paper looks at the declining number of lawyers in the Nova Scotia assembly since Confederation, considers the possible reasons for the decline, then discusses a few implications.

Although this paper focuses on Nova Scotia, it is a reasonable hypothesis that the results would be similar across Canada.

Methodology: Where do the numbers come from?

To count the number of lawyers who have served in the Nova Scotia House of Assembly since Confederation, I started with a comprehensive biographical directory of Nova Scotia MLAs compiled by former legislative librarian Shirley Elliott. (1) That directory includes an occupational listing for almost all members up to 1983.

To bring the count up to date, I consulted the Nova Scotia legislative library about lawyer-MLAs who served since the end of Elliott's directory. (2)

This methodology produces good results, but we have to be a little cautious. What is a "lawyer"? Certainly it includes a person who has been admitted to the bar and who has practiced law. But should it include a person with a law degree but who was never admitted to the bar? Should it include a person who was admitted to the bar but never practiced?

For the sake of consistency and simplicity, I counted an MLA as a lawyer if they are listed by Elliott as a "barrister". For ML As serving after the end of Elliott's book, I counted them as a lawyer if they were, to my knowledge, admitted to a bar. That omits two MLAs who held a law degree, but were never admitted to a bar.

The next step was to compile a spreadsheet listing the sessions of the House of Assembly in which the lawyer-MLAs served. A "session" is the entire period between general elections. For example, the first general election after Confederation elected the 23rd House of Assembly. The current House, elected in 2017, is the 62nd Assembly. This spreadsheet allows us to count how many lawyers served in a given session.

One quirk of this methodology is that it is possible for some lawyer-MLAs to have served in the same session, but not at the same time. (3)

Results: What do the numbers show?

The results are shown in Figure 1. The most striking result is the steady decline in the percentage of lawyers in the House, starting in the 1970s and continuing to the present day.

Since Confederation, 155 lawyers have served in the Nova Scotia House of Assembly.

During that time, the total number of seats available during general elections was 1711. Taking into account the fact that many lawyers were elected more than once, and leaving aside the complications of partial terms and by-elections, 490 of the 1711 positions (28.6 per cent) have been filled by lawyers.

From Confederation in 1867 until 1974, the percentage of lawyers in the House of Assembly never fell below 20 per cent. In 1974 (the 50th Assembly) the percentage of lawyers dropped to 17.4 per cent, the first time it had ever been below 20 per cent. Since then the trend has been steadily downward, and the 2017 election (the 62nd Assembly) produced the lowest absolute number of lawyer-MLAs (two) and the lowest percentage of the House (3.9 per cent) since Confederation.

The highest percentage of lawyers was the 1902-06 House (the 32nd Assembly), which had 38 members, of whom 17 or 44.7 per cent were lawyers. The 1957-60 House (the 45th Asssembly) also had 17 lawyers, but by that time the House had grown to 43 members, so the percentage was a little lower (39.5 per cent).

Of the 155 lawyers who have served as an MLA since Confederation, 17 became premier. That is remarkable, considering Nova Scotia has had only 27 post-Confederation premiers. Even more remarkable is the fact that in the 94 years from 1896 to 1990, a lawyer was premier for all but six years.

Analysis: What's the story behind the numbers?

How can we explain the steadily declining numbers of lawyers in the House of Assembly?

Inevitably, there has to be some speculation involved in trying to find an answer. What follows are the most likely explanations. There may be others.

The shift from part-time to full-time work

Prior to the 1970s, the work of an MLA was generally considered to be a part-time job. The House of Assembly held a spring sitting that typically lasted under two months. Being an MLA was quite compatible with continuing with one's regular occupation, and so that is what most MLAs with a professional occupation did.

After the 1970s, the work of an MLA was generally considered to be a full-time job. One former MLA-lawyer, first elected in 1978, told me that he tried to carry on a practice after being elected, but it was not easy and required the co-operation of judges and opposing counsel. For example, he participated in a five-day trial that was held on five consecutive Mondays, because the House of...