How much is independence worth? Canadian lawyers may be asking this question as they prepare to pay their annual law society dues. If the rest of the world is any indication, the self-governing model that underlies Canada’s legal profession may soon face a day of reckoning.
And contrary to conventional opinion, that may not be a bad thing.
Our tradition of self-governance has remained largely unchallenged for more than two centuries. It is a source of pride for many in Canada’s legal community and is even viewed by some as a fundamental constitutional freedom and a requisite for the rule of law.
While such sentiments can be stirring, the reality of professional self-governance in this country is decidedly more banal. On a day-to-day basis, most lawyers encounter self-regulation not as a shining ideal, but in the form of a clunky regulatory regime that is both antiquated and expensive. As the costs of self-regulation become more apparent and its justifications more abstract, changes taking place in other jurisdictions may come to have increasing appeal for Canadian lawyers.
From Australia to France, the legal profession is experiencing sweeping change through co-regulation and other manners of reform. Even England has not been untouched. The Legal Services Act of 2007 has upended the Law Society of England and Wales, the country’s venerable solicitor’s body. As overseas reforms present implicit challenges to ongoing self-governance in Canada, so too do the increasing number of lawyers in this country who discover that professional costs south of the border come at a fraction of the price. These nomads are unlikely to maintain any special reverence for the old and rigid rules of provincial law societies.
Change is almost certainly coming for the societies that have long governed Canada’s lawyers. Before it does, the country’s legal community should decide whether self-governance can survive and what, if anything, will be lost if it falters.
A WATERTIGHT COMPARTMENT
For a relatively young country, Canada’s tradition of professional autonomy for lawyers is remarkably old. In the case of Ontario, self-regulation preceded Confederation by 70 years and has changed little since that time. According to Blaine Baker, a McGill University law professor and historian who has written extensively about the legal profession, the mandate and powers of the law societies remain largely the same as what they were at their inception.
“The empowering statute is not very different in 2008 than it was in 1797,” says Baker in regard to the Law Society of Upper Canada. “In two centuries, there’s never been a wholesale assault on the practice of self-regulation of lawyers.”
Baker also notes that Canada’s law societies have a record of effectively protecting lawyers’ prerogatives from encroachment by other professionals. They have also assiduously maintained control over admission and discipline (the “in-and-out function”) even after devolving the responsibility for legal education to universities in the mid-20th century.
The self-regulation model has undeniably stood the test of time. But is it still the best one? Its proponents are confident that it is. Perry Mack, outgoing president of the Law Society of Alberta, argues that lawyers are better positioned than civil servants to establish professional credentials. Moreover, he says, lawyers’ independence is an essential corollary to effective advocacy. “It’s in the interest of our clients that there are watertight compartments between the state, the courts, and the legal profession. Many matters for which we’re retained involve conflicts with the state — it’s important that clients know that we have undivided loyalty.”
Mack’s views of self-regulation are shared by other law society officials. Malcolm Heins, CEO of the Law Society of Upper Canada, agrees that the task of running the profession is best left to lawyers. He suggests that doing so not only ensures an appropriate level of expertise but also facilitates access. “We also have a responsibility for access to justice which is set out in the Law Society Act. We’re involved in various initiatives to educate the public and to consult with government and the courts about various projects to help the public access the justice system.”
In the eyes of its proponents, the self-regulated model furnishes the best of all worlds. While a cynic might be quick to note that those touting the system are also its gatekeepers, strong arguments for professional independence also come from more disinterested quarters.
Currently vice provost at the University of British Columbia, Wes Pue is a law professor and author of “Death Squads and ‘Directions over Lunch,’” a recent paper that explores the significance of an independent bar. While his current position does not permit him to speak on the record, Pue’s paper makes clear that he believes self-regulation carries an importance that extends far beyond administrative expertise.
Like Mack, Pue holds that independence from the state is integral to lawyers’ ability to act as effective advocates. On a more fundamental level, he suggests that an independent bar provides an important safeguard for constitutional democracy. Pointing to persecution of lawyers in Kenya, Iran, India, Pakistan, Sri Lanka, and other countries, Pue writes: “The fate of lawyers is a bellwether of sorts for constitutional democracy and civil liberty alike.”
Even Canada’s longtime constitutional stability does not lead Pue to concede that the country could safely withstand dilutions to lawyers’ independence. His paper calls attention to the so-called “APEC affair” of 1997 in which nominally independent organizations like the CBC and the RCMP were compromised by government interference. For this reason, Pue suggests even minor distortions to lawyers’ autonomy in the form of “back-channel government direction” are capable of subverting democratic governance. Pue and members of Canada’s law societies offer powerful theoretical arguments in favour of ongoing self-governance. It is unclear, however, whether their positions are persuasive to the practising lawyers who must pay the fees that sustain the profession’s independence.
