The customs of the legal profession are feeling the weight of 21st-century stresses
Anne Rempel has not had a positive experience with self-regulation. She has made two complaints to a Canadian law society, but the process left her feeling the concerns were not entirely addressed by the “black box” system of lawyer discipline.
“I think that's the one problem with lawyers regulating other lawyers: It gets into a bit of an echo chamber,” says Rempel.
In Rempel’s case, she was trying to address how lawyers handle elder abuse — although she has since written about many issues facing self-represented litigants. While the law society was easier to deal with than some other professional regulators, she questions whether more levels of outside auditing are needed.
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“I think it’s about addressing the issues that concern the public and in a timely manner,” says Rempel, a retired engineer who has since moved to Australia. “Taking a smaller step earlier, rather than waiting for a big tribunal hearing and very punitive outcomes.”
Rempel is not the only onlooker asking how law societies serve the public interest. This year, Ontario’s legal regulator faced increased scrutiny. The statement of principles requirement — a rule to make lawyers pledge support of diversity and inclusion — was dissected by media across the country, with commentary reaching a crescendo in mid-September.
While the Law Society of Ontario leadership has done well to make its board meetings public and train an influx of new members, the statement of principles debate revealed issues in how the body discusses the public interest, says Rebecca Durcan, a lawyer whose practice focuses on professional regulation.
“Unless you are a lawyer, and even if you are a lawyer, it was somewhat difficult sometimes to follow what was happening,” says Durcan, who briefly served as a bencher last year. “I think it was concerning that members of the public and profession were left thinking, ‘What is going on? What is being discussed here?’”
Spectators filled Toronto’s Osgoode Hall Convocation meetings this year to see how newly elected leaders would handle the statement of principles — a balance of free speech and promoting equality — in two days of seemingly relentless debate about diversity and inclusion. Dozens of lawyers fidgeted in the audience, by the end, as the 53 voting members jockeyed for their turn at the microphone to discuss whether adding a checkbox to lawyers’ annual reports constituted good governance.
At the meetings, law society benchers also expressed worries about how the debate would look from the outside.
“I just want to remind everybody that we are here as governors in the public interest,” bencher and statement of principles supporter Gina Papageorgiou said at one of the debates.
Her worry?
“The public are not going to understand the nuances.”
Rempel was one such member of the public who followed Ontario’s recent diversity debate, recalling her experiences as an engineer in a regulated, male-dominated profession that caters to Anglo-Saxon backgrounds. The law profession seems to be behind the times, she says.
“If I was asked to write a statement saying that I wasn’t going to kick dogs and beat cats, I might find it an imposition — since I don’t do that anyway, and I don’t know why they would be asking that. But I wouldn’t choose that one to have the fight on,” Rempel says.
“It’s not the only issue where they could take a stand on over-regulation. To me it sends a bad message to the public.”
The models of self-regulation
There is a need for regulatory reform in the legal profession, says Darrel Pink, who recently retired as executive director of the Nova Scotia Barristers’ Society, which he ran from 1990 until last year.
“I don’t think any law society in this country can rest on its laurels,” says Pink. “I ask this question, and I don't ask it glibly: Tell me, what difference do we make at law societies? How do we improve the lot of Canadians? How do we improve the lot of lawyers and the clients that they serve?”
Criticisms of law societies are not new. Indeed, Ontario’s recent diversity debate echoes decades of dispute over the institution’s role in addressing barriers to entering the legal profession.
A detailed history of New Brunswick’s law society notes that it got the power to discipline members after lawyers’ “well-publicized episodes of dishonesty.” The LSNB also highlights the pushback it got through the years: that it was a legislated monopoly; that audits violated civil liberties; and that licensing standards made the profession inaccessible to diverse candidates.
“So accessible was the profession in the early years of the century that several women and a significant number of Jews were able to attend the Law School; and its very first student was black,” the LSNB wrote. “Yet in the scramble to demonstrate to a sceptical public that lawyers were ethical and could be trusted to police themselves, the bar asserted a link between securing more honest lawyers and imposing higher pre-law qualifications.”
But despite more than 200 years of governance, it seems that questions about the effectiveness self-regulation in the legal profession have not just persisted but intensified, some lawyers say — as courts struggle to aid self-represented litigants and as technology and consulting firms eye the legal services market.
In a study he led in Nova Scotia, Pink found that as people come to Canada from across the world and lawyers are enabled to practise across wider geographies, the self-regulatory system has broken.
“We now live in a globalized world, and the norms of responding to the needs of the community have changed,” says Richard Devlin, professor at the Schulich School of Law at Dalhousie University in Halifax and chairman of the board for the Canadian Association for Legal Ethics. “If you look to what’s happening in the U.K. and Australia . . . there hasn’t been any real evidence of a threat to judicial independence. So, I think it is a lot to do with a traditional view of the world.”
Rempel, for example, lives in a jurisdiction (Australia) that has moved away from the law society self-governance model, amid “general distrust of the legal system by Australians in the 1990s and 2000,” writes University of Toronto professor Anita Anand in a recently published paper.
In 2007, England and Wales — which had until then taken the same approach as Canada — joined Australia in implementing co-regulation, where two or more bodies share the oversight of lawyers. In the U.S., courts tend to delegate to state bars to set professional standards, as part of the “separation of powers” set out by the constitution, Anand added.
Canada, by contrast, has mostly stuck by its self-regulation model, centred on law societies. Durcan notes that as other professional regulators move toward smaller, skill-based boards and other regulatory models, Canada’s law societies stand out.
South of the border, meanwhile, legal regulation is changing rapidly, says law professor Gillian Hadfield. Hadfield is helping states such as Utah create a new regulatory agency to track the provision of legal services — by lawyers and non-lawyers alike. California and Arizona are also considering the approach in response to “an era of regulatory reform.”
The Institute for the Advancement of the American Legal System, which, like Hadfield, is working with state governments on legal regulation, acknowledged that criticisms of the legal profession are decades old.
“What makes this time any different?” the Institute wrote. “For starters, the legal profession is facing an unprecedented crisis in serving the needs of people with legal problems.”
Law societies’ failure to act quickly and adapt to change is one reason other jurisdictions have moved away from self-regulation, says Devlin. For example, Devlin says, the Canadian Association for Legal Ethics flagged the issue of judges returning to practice over a decade ago, but it remains a live issue in Canada.
Some alternatives to self-regulation are co-regulation or oversight regulation, says Devlin. A co-regulation model might divide the process of lodging complaints against lawyers among different regulators, while an oversight model might allow decisions made by the law society to be appealed to an independent authority.
But the Law Society of British Columbia, for example, says on its website that lawyers are self-regulated as “a part of upholding lawyer independence.”
“It would pose a conflict of interest if the organization that regulated lawyers was directly or indirectly controlled by the government,” the LSBC says, calling lawyer independence a “cornerstone of democracy.”
“The reason people like self-regulation is obvious. They believe in the independence of the profession — that it should be free from state interference. But they also believe that only they have the expertise to judge themselves,” says Devlin.
“The question is, ‘In a democracy, where all institutions need to be accountable, is self-regulation a defensible regulatory regime?’ My argument would be that it’s not.”
It is difficult to have the same body representing the membership and the public interest, says Devlin.
At the Law Society of Prince Edward Island, for example, the Legal Profession Act dictates that the regulator should both “uphold and protect the public interest” and “uphold and protect the interests of its members.”
“There is an inherent conflict of interest there,” says Devlin. “There’s a very strong temptation and even likelihood that the lawyers’ interests will come before the public interest. So, in terms of the statement of principles, that was really a conversation in many ways about some lawyers putting their self-interest or subjective vision ahead of the public interest.”
Competition
Another criticism of self-regulation is that, by making sure lawyers are running the show, the profession can protect its economic interest, says Hadfield, even as litigants go unrepresented amid unaffordable legal fees. It’s been more than a decade since Canada’s Competition Bureau studied legal regulation. In its last report, it said that many of the restrictions enacted by law societies raise costs for consumers.
“The way in which our law societies and bar associations regulate the provision of legal services is the single biggest determinant of the high cost of law, which is the single biggest determinant of the lack of access that the vast majority of people have to legal help,” says Hadfield.
“Lawyers shouldn't be regulating their own markets.”
Some of Canada’s law societies are taking note of the fault-finding.
“The concept of self-regulation has come under increasing scrutiny in other jurisdictions,” the Law Society of Yukon wrote when it looked at a new Legal Profession Act a few years ago. “[G]overnments are prepared to step in if the regulation of legal services is not being properly conducted in the public interest.”
The Law Society of the Northwest Territories has espoused that it is “nimble.”
“Our ability to get things done is the envy of other law societies,” president Alex Godfrey wrote in the LSNWT’s latest annual report.
The Barreau du Québec is perhaps the most distinctive in Canada, allowing “a more prominent role for the state, a bifurcation of the legal profession, and a greater tolerance of non-lawyer involvement in law firms,” law professor Noel Semple wrote in a recent paper.
Other law societies, including the LSO, have also considered compliance-based entity regulation — which is used in Australia and has been used and expanded in Nova Scotia since 2005. The Law Society of Manitoba has a system with both appointed and lay benchers in addition to having elections.
Still, Canadian law societies sometimes show little appetite for change, says Pink. He points to a 2018 debate at the LSO, which — despite opposition — trimmed down the number of benchers in Convocation.
Ontario’s Ministry of Attorney General said it clearly approved of a more “streamlined” approach — on the heels of the provincial government’s cuts to Toronto’s city council for its large, lumbering leadership of 44. Critics argued that Convocation’s large membership was a barrier to efficiency and an invitation for government intervention.
But others argued the opposite — that reducing the diverse sundry of voices in Convocation might threaten the law society’s privileges.
“We're one of the few countries in the world that still allows independent self-regulation of the legal profession. You tinker with the dynamics of that at the profession's and the public's peril,” one life bencher said.
Will things change?
Despite fears around the end of self-regulation, it’s unlikely that any one incident will unravel Canada’s law society traditions, which are so tightly woven into the profession’s psyche.
The night before the Law Society of Ontario’s statement of principles debate, Justice Frank Marrocco spoke at the Ontario court’s annual opening ceremony.
“In 1797, Chief Justice Osgoode and Governor Simcoe decided that the legal profession should be self-governing,” said Marrocco. “They concluded that a self-governing legal profession was the best way to make legal services available to the people.’”
But Marrocco also reminded lawyers that because it was governed by an independent body, the legal profession had a “social contract” to support access to justice. Less than 24 hours later, the benchers reached a compromise on the statement of principles, an issue that had dominated law society discussions since elections in the spring. Durcan praised Treasurer Malcolm Mercer for his leadership in the meetings, fraught by an influx of newcomers unfamiliar with procedure.
Still, Hadfield says that bencher elections that stray from the public interest and the access to justice crisis serve as evidence of the “failure” of the self-governance model.
“I'm a big supporter of principles and big supporter of diversity,” she says. “But these regulators are not doing their job at all. They are not regulating in the public interest. They're having political elections.”
What law societies can do
Mercer concedes that there are problems with the self-regulation model — but there are also benefits.
For one, Ontario’s law societies are more holistic than split up co-regulators, says Mercer. That offers opportunities for integration and insights with programs such as LawPRO, which provides professional liability insurance. Plus, electing benchers makes sure they are accountable to the profession at large, rather than just a selection committee.
With the government already employing prosecutors, funding legal aid and engaging in civil litigation, Mercer says, it could create a “real problem of conflict” if the Ministry of the Attorney General also regulated lawyers.
He questions whether a governance overhaul is the right way to address the criticisms of self-regulation.
“I think it's very easy to imagine ideal solutions. It's very hard and very expensive to make radical change,” says Mercer. “I'll use the example of England where . . . a whole series of new regulators — frontline regulators and an oversight regulator — were created. That has very significant costs. It requires huge amounts of effort and focus by people to create an entirely new system. And, at the end of the day, it's not completely obvious that it necessarily changes fundamental problems.”
He says law societies can do more to address problems such as the “echo chamber” of lawyers, pointing to his meetings with self-represented litigants over the past two years. The LSO’s paralegal standing committee is also carefully balanced to make sure neither lawyers nor paralegals nor members of the public dominate the discussion. He compared that with the issues that the LSBC has faced integrating paralegals into professional regulation.
“The law society has to strive to continue to act in the public interest, and thereby demonstrate it is a regulator worthy of public support,” says Mercer. “The system can be improved. It is not prudent to jettison everything because there are problems. It’s better to try to fix them.”