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You should care about how lawyers are regulated

|Written By Gail J. Cohen

The self-regulatory system for lawyers in Canada needs an overhaul, University of Calgary law professor Alice Woolley argues in a paper released today.

There has been some (really not enough) debate in the legal profession in Canada about the future of self regulation. There are critics who call for it to be abandoned entirely and have the courts regulate and discipline lawyers as is done in many U.S. states.

Woolley maintains that independence of the bar is paramount, but does not wholly subscribe to the theory that lawyers must regulate themselves in order to be independent. “Rather, the things that independence should protect — the ability of lawyers to be zealous advocates for clients within the bounds of legality — should be used to assess the adequacies of any regulatory scheme. Does regulation ensure that lawyers fulfill their duty of zealous advocacy? Does regulation ensure that lawyers remain within the bounds of legality? Does regulation ensure access to justice?”

She is not calling for the abandonment of the system where lawyers regulate other lawyers, she argues it can be modified to both help ensure accountability and protect clients’ rights. She looks at the changes that have been made to the systems in England and Wales, saying: “Canadian regulation of lawyers could be improved and made better to ensure that lawyers act as zealous advocates within the bounds of legality.”

The paper, “Rhetoric and realities: What independence of the bar requires of lawyer regulation,” makes a number of proposales including the creation of a legal regulatory review office in each province to oversee law society activities. Lawyers and non-lawyers alike would govern it and “have the power to make recommendations to the provincial law society when it believes the law society has failed to discharge its legislative mandate fairly and properly.”

There is definitely a large chunk of the public that think having lawyers discpline each other actually means lawyers protecting their own rather than meting out real discpline and protecting the public. From that point of view, Woolley’s most important proposal is to separate the dispute resolution function of the provincial law societies into a distinct regulatory entity. This would mean that clients could appeal directly to this body with their client-service complaints.

Finally, the paper calls for a greater commitment from the Supreme Court of Canada to facilitate access to justice. Regulating billing, standardizing lawyer services and restoring legal aid funding would all help in this regard. “If clients cannot access lawyers then the rule of law is impaired,” Woolley writes.

The 39-page paper should defiinitely get the bar talking more about this issue. Canadian Lawyer addressed it in a less formal way in the January 2009 cover story but even just a couple of years ago, while ther was still dissatisfaction with the system, very few practising lawyers were interested in debating the issue. Perhaps now is the time — the rest of the common law world is addressing the matter, so should Canada. The future of lawyer regulation affects each and every practitioner in this country, no matter where, no matter what type of law. And lawyers should care about it.

Addendum: On this same note, today, the Law Society of British Columbia started a campaign inviting the public to apply to sit on disicipline and credentials hearing panels. It arises, in part, from “growing public scrutiny of self-regulatory organization,” said LSBC president Gavin Hume. This and other “proactive measures” are being taken “to maintain confidence in the law society’s regulatory process.”


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