PROTECTING WHOSE INTEREST?

While the rhetoric justifying the independence of Canada’s law societies may be characterized by high-minded principle, everyday interaction with them is not. The average lawyer likely has little time to reflect on the privilege of self-regulation, and will instead be more preoccupied with what they are receiving for annual fees that are close to and in some cases above $2,000. More generally, there is evidence of a disconnect between law societies and their members, one that may be especially apparent to those who have are called to a bar outside of Canada.

Negar Achtari lives in Ottawa where she has practised immigration law for the past three years. Having also obtained law degrees in Switzerland and Delaware and a bar from the state of New York, she is skeptical about the efficacy of the Canadian model. While Achtari has praise for the country’s articling program, she suggests that Canadian law societies are over-priced and needlessly fixated with oversight powers.

“No, I don’t think so. I think the fees are elevated,” she says when asked whether Canada’s higher professional fees supply extra value. “When I compare the fees [to New York], it doesn’t make sense. There’s not as many of us, yet there’s a huge budget for governance. It’s as if their starting assumption is that we are all crooks.”

Saba Naqvi, a lawyer with Boughton Law Corp. in Vancouver, is another practitioner whose experience south of the border has left her questioning Canada’s steep professional fees. With bars in both British Columbia and California, Naqvi credits the Canadian model for helping her secure a high level of trust with her clients.

Overall, though, she is unconvinced the tab she pays is worthwhile. “I don’t believe I’m getting more in B.C. for what I pay,” she says, adding that a voluntary professional association to which she belongs supplies resources far more valuable than those provided by the mandatory associations.

New entrants to the profession are another group that may be having second thoughts about the virtues of self-regulation. To those commencing articles, law societies do not appear as representative bodies designed for members to shape the development and governance of their profession. Rather, future lawyers are likely to feel vulnerable at the hands of an institution that has broad powers over their career and future.

Nor have the law societies succeeded in offering practical and relevant professional training. In the case of the LSUC, its mandatory skills program has recently eschewed any instruction in practice software but instead provided lessons in managing clients through a “tickler system” of index cards. The LSUC has displayed a similar insensitivity to future lawyers through its requirement that articling students surrender all bar textbooks — including newly purchased Criminal Codes — that are taken into the bar exam for destruction after the test.

There seems no viable explanation — such as a concern for intellectual property rights or a desire to protect the public from outdated information — for this practice. It imples a basic mistrust on the part of the law society towards its own members.

If there is indeed mistrust between the law societies and those they oversee, it may be mutual. In the course of researching this article, the author posted a query to a popular legal discussion board asking if articling students would speak on record about their views of law societies. Not a single individual agreed to do so. Instead, the post attracted a number of replies that were downright paranoid or sardonic.

A number of replies suggested, without jest, that the query was in fact posted by a member of a law society looking to ferret out dissidents. Another simply wrote, “I’m sure you will find tons of people willing to kill their career before it even begins."

Responses from those identifying themselves as lawyers were hardly more positive. One particular curmudgeon gnashed that, “Law societies tend to be staffed by people with LLBs who can’t practise or teach, so they regulate other lawyers’ conduct through the imposition of rules and requirements that have nothing to do with the real world. And they work for benchers, most of whom are the same kind of little farts who ran unsuccessfully the first three times for election as high school president before learning that the fourth time can sometimes be a charm. They seek election because the law society has a great wine cellar and they can all award each other law society medals and other awards at gala dinners funded out of compulsory professional membership fees."

Anecdotes and anonymous Internet postings are not enough to impugn the overall performance of self-regulated law societies. There is, however, a further charge the societies must address. It is the perception (noted — though not necessarily endorsed — by Baker and Pue) that they direct a disproportionate amount of their regulatory energy towards the margins of the profession.

This perception holds that law societies have historically focused on solo practitioners and ethnic outsiders rather than on problems affecting larger firms or the profession as a whole. If trends in self-governance can be extrapolated from England, the problem of bullying on the part of law societies may not simply be a historical one. Over there, groups of black and Muslim lawyers have called for the creation of their own regulatory body after a 2006 survey revealed that 62 per cent of all investigations were directed at non-white lawyers.

Taken together, the criticisms directed at law societies suggest that, for many lawyers, self-governance is hardly a privilege. In fact, for some practitioners, the greatest threat to their profession is not government intrusion but is instead unfair regulatory zeal by their own colleagues.