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Time to streamline the societies?

Cover Story
|Written By Jeff Roberts

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.


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.


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.”

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