In September, the Competition Bureau released a post-study assessment to its 2007 report that looked at restrictions impeding competition in five professions, including the law. The profession had been on tenterhooks as to what the assessment would say and how it would affect the regulation, in particular, of the profession across the country.
While the post-study assessment may not have got much attention, it could have — and really should have — been a game changer. But the bureau seems to have missed the chance to bring Canada’s legal profession into the New World order.
While it commends the profession for doing a good job removing obstacles to practising law across all provincial borders and relaxing advertising restrictions, it notes “much work remains to be done” towards eliminating barriers to competition. “The level of consideration that self-regulating professional bodies give to competition issues in the development and review of their regulations is not always as comprehensive as it should be,” says the assessment.
But it doesn’t go as far as saying the regulators need to make wholesale changes to their rules. Changes that could bring Canada in line with other Commonwealth jurisdictions such as Australia, where law firms are now able to list on stock exchanges and Britain, which is ready to enact a brand new Legal Services Act that allows lawyers to team up with non-lawyers in alternative business structures to raise capital.
It’s hard not to agree with the legal academics who say the Competition Bureau has missed the mark. “It’s an increasingly global market, and eventually one will want to provide legal services here. Then the legal profession is going to be forced to address it. There is going to be continued competition pressures, if not from the Competition Bureau, then from other jurisdictions,” University of Ottawa law professor Adam Dodek told Law Times.
Former Queen’s University law prof Paul Paton, who now teaches law at the University of the Pacific and is the former chairman of the Canadian Bar Association’s national ethics and professional responsibility committee, says regulators are standing in the way of innovation and that is not in the consumer interest. “I think masking professional self-interest as the public interest can only lead to problems.”
With U.K.-based law firms such as the Norton Rose Group already on our shores and suitors such as DLA Piper knocking on the door, the regulators of Canada’s legal profession need to face up and make changes. Firstly, in Ontario in particular, the Law Society of Upper Canada should be out of the business of regulating paralegals, essentially their competitors, as the Competition Bureau’s 2007 report recommended. Beyond that, law societies need to address the matter of alternative law firm structures.
Business and economies are changing, here and around the world. Canada’s legal profession needs to change with it — whether the Competition Bureau mandates it or not.
And on a side note, I’d like to welcome our newest columnist, Neill May of Goodmans LLP, who will be taking over the Banking on Corporate column. I look forward to his insightful, and amusing, take on corporate-commercial law.
