THE BEGINNING OF THE END?

Canada’s law societies may one day face serious challenges from oppressive governments or from disgruntled members. Neither of these forces, however, is likely to bring about an end to Canadian lawyers’ longtime tradition of self-governance. Instead, threats to the comfortable existence of the law societies come from larger legal and economic forces that risk making them irrelevant.

For example, the career path of Montreal-native Jason Crelinsten suggests that the old-time ways of Canada’s law societies hold little mystique. Upon graduating from McGill Unviersity, Crelinsten elected to forego the rigours of articling altogether and joined other Canadians in New York City. “In New York, you take an eight-week bar class, two days of exams, and you’re in. You learn on the job — it’s up to you as an autonomous individual.” Crelinsten adds that voluntary bar associations on a national, state, and city level are popular, but that he does not see the advantage of a mandatory Canadian-style model.

He also notes that the global context in which he works does not result in lawyers forging a professional allegiance to one particular locality. “In large firms where legal practice is increasingly supranational and the majority of work is on the business side, it’s an open question of how much law societies matter. It’s rare to find a corporate lawyer who works in just one jurisdiction.”

This globalization of the profession and the challenge it presents to Canadian law societies has also attracted the notice of academics. The dean of the McGill’s Faculty of Law, Nicholas Kasirer, notes that both the law and those who practise it are no longer limited by territory or geography. While what Kasirer styles as a “nomadic jurisprudence” is challenging the traditional roles of self-regulated law societies, so too are more pedestrian demands such as calls for lower prices and accountability to consumers.

In England, former lord chancellor Lord Irvine warned the country’s solicitors in 1999 that they were “drinking in the last chance saloon.” The passage of the Legal Services Act of 2007 created potentially radical reforms that included a possible opportunity for supermarkets and insurance chains to offer legal services. Australia has largely moved towards a system in which lawyer oversight is done through a form of co-regulation between the profession and the state. In many U.S. states, oversight is through the courts. New Zealand is in the process of creating a uniform national model of regulation. Nor is the drive for reform limited to the common law world as France’s President Nicolas Sarkozy is attempting wholesale review of the country’s legal profession.

Canada may be next in line. A 2007 report by the Competition Bureau concluded that the country’s self-regulated professions, including lawyers, have unduly restrictive rules that may be affecting productivity and economic growth.

For now, Canada’s law societies appear to be handling any coming storm in stride. Both Mack and Heins claim that the particular conditions that brought about change in other Commonwealth countries are not present here. In particular, Heins notes that law societies in other jurisdictions ran into conflict as a result of their conflating regulatory and representative functions. In Canada, he claims, the discrete mandates of the societies and the Canadian Bar Association prevent this conflict from arising.

As for the challenges presented by increased mobility in the profession, Heins points to the recent accord created by the societies to facilitate movement within Canada and adds that the societies are alert to issues surrounding international practice. Mack from Alberta notes that the globalization of the profession may be overstated. “First of all, I would say most lawyers do not work for international law firms. Most lawyers are going about the business of providing services to members of the Canadian public on a day-to-day basis.”

Mack and Heins may be correct that Canada’s legal profession is well poised to continue with its long-time model of self-regulation. But what if they’re wrong? Rather than shuddering at the prospect of losing self-governance, Canadian lawyers may regard such a turn of events as an opportunity. Self-regulation has until now been a mixed blessing to many — and an expensive one at that.

Ultimately, it may be Canadian lawyers themselves who push to dismantle the law societies in favour of an alternate regulatory model such as that offered in the state of New York. A New York-style regime has some obvious appeals, including fees that total only $350 every two years. Those concerned about protecting the public could take comfort in the fact that a portion of these fees is directed to a client protection fund akin to the ones in place in each Canadian province. Moreover, professional discipline is affected through special committees of lawyers under the supervision of the appellate court system.

A further potential advantage of disbanding the law societies is the additional time and money to participate in voluntary bar associations that align more closely with their interests. Already such associations are affording Canadian lawyers an opportunity to take pride not in the regulation of their profession but in the practice of it. “The most important thing I’ve seen come out of the legal profession in the last five years has been the stand the Canadian Bar Association took last year in support of Pakistan’s chief justice and lawyers who were being attacked,” says McGill’s Kasirer.

Any coming shift in the paradigm of legal regulation may also provide a welcome opportunity for Canadian lawyers to have a fresh look at how they would like their practice to evolve in the future. Such an examination could also explore more fundamental questions such as the degree to which professional autonomy is necessary to ensure the prevalence of the rule of law in Canada.

At the very least, Canadian lawyers should remain aware of how dramatic new regulatory models are affecting their profession in other countries, a point underscored by Kasirer. “It is absolutely essential for law societies, law faculties, judges, and practitioners to really look at what people are doing in other parts of the world.”