Self-regulation at home and abroadWritten by Fathima Cader Posted Date: October 26, 2009
On Oct. 21, the faculty of law at the University of British Columbia hosted a lecture by Richard Devlin on the self-regulation of law societies. While self-regulation has long been considered an essential component of Canadian law societies, the content of and reaction to Devlin’s lecture indicate that that structure is in fact deeply contested among legal practitioners and academics.
Advocates contend that self-governance:
• is necessary to preserve the independence of the bar, the independence of the judiciary, and rule of law;
• that it assures the public of protection from state violation;
• that only lawyers have the necessary expertise to assess other lawyers, making self-regulation at once the most efficient and rigorous means of regulating them; and
• that self-regulation has been so long a part of the legal tradition (since at least the 15th century) that it has become part of the profession’s unwritten constitution.
Dissenters, however, counter:
• that self-regulation does not ensure the protection of public interest, because of the constitutive conflict of interest, which entrenches a monopoly on legal services;
• that regardless of whether or not the system serves the purpose of justice, justice cannot be seen to be done when the public sees self-regulation as a conflict of interest; and
• that there is no causal connection between self-regulation and independence, especially since traditional arguments for that connection have failed to acknowledge that in addition to the executive branch of the government, the profession is also vulnerable to control by corporations.
Devlin cited several cases that suggest the current practice of self-regulation warrants concern.
For example, Canadian law societies (except in Alberta) currently provide no guidance for counsel who are given physical evidence of a crime. This despite the fact that in 1993 Paul Bernardo’s lawyer, Ken Murray, was charged and then acquitted of obstruction of justice, after which the Law Society of Upper Canada brought and then dropped charges of professional misconduct against him.
Similarly, the handbooks do not outline the boundaries of acceptable sexual relations with clients, so that individual lawyers are required to estimate what steps are necessary to avoid conflict of interests.
This is what happened in 2005 with George Hunter, the former president of the Federation of Law Societies of Canada and treasurer of the LSUC. He was charged with misconduct for his relationship with one of his clients and then given a two-month suspension as punishment.
Devlin then posited some explanations for why there has been so little debate in Canada about self-regulation. These included the absence of readily available complaints systems and statistics in law societies; a tendency among progressive lawyers to focus on access to justice issues rather than regulatory reform; and a dearth of scholarly research on self-regulation.
In presenting some alternatives to self-regulation, Devlin’s study took an international approach.
He noted that Canada may soon be the only country in the Commonwealth where the profession remains self-regulating.
In Australia, while the law society retains authority over rules, reforms initiated over the last decade have created an independent, government-appointed body to handle complaints.
In England, similar reforms are now pending.
Drawing on those reforms, Devlin presented a series of possible models that could be instituted here in Canada.
Ultimately, much of the force in Devlin’s paper came from the sense that he was less interested in dismantling self-regulation than in triggering a debate around the issue, a debate more nuanced and less polarizing than ones currently being had.
In the question period that followed his lecture, Gordon Turriff, president of the Law Society of British Columbia, passionately defended self-regulation as a means of serving the public interest, citing his own work in the field for several years as evidence.
In fact, it was with quotations from Turriff’s papers on self-regulation that Devlin had begun his lecture.
All of this speaks to how vital this topic is to the future of the profession and its reputation in Canadian society.
For this reason, it would be worthwhile for current law students to keep an eye on the debate, since with changing systems overseas and controversy at home, these issues will have a definite impact on everything to do with our futures in the profession; from the fees we will have to pay and the governance structures to which we will be beholden to our very understanding of legal ethics.
Fathima Cader is in her first year of law at the University of British Columbia.