Top Issues for the Canadian Legal Profession in 2013

In the spirit of the New Year, Resolutions and Top 10 lists, I present to you my predictions for the top issues that the legal profession in Canada will face in 2013. This was inspired by a discussion on the listserv of the Canadian Association for Legal Ethics (CALE) and in particular by contributions from Alice Woolley who started things off with a “Best of 2012″ post that you can find here. Malcolm Mercer, Tom Harrison, and Richard Devlin, as always, expanded and enriched the discussion. Some of my “Top Issues for 2013″ repeat Alice’s Top Issues in 2012 but I think that is the nature of our slow-to-change profession.

So here is my “homage to David Letterman” and the Top 10 Issues for the Canadian Legal Profession in 2013:

10. The continuing battle over conflicts of interest

The SCC’s conflicts trilogy will become a quadrilogy (?) (or a tetralogy?) with McKercher being heard by the SCC on January 24, 2013. Elsewhere, I have written about the battle over conflicts of interest between the CBA and the Federation of Law Societies of Canada (FLSC)

9. The continued implementation of the FLSC’s Model Code of Conduct

BC and the West are already in. So is Nova Scotia. This leaves the Law Societies of New Brunswick, Newfoundland and Labrador, Prince Edward Island and the Territories. The Barreau du Quebec is quickly becoming “the most interesting Law Society”, for many reasons, including its new draft Code of Conduct for Advocates.

8. The Future of Articling?

Not only nervous law students in Ontario are watching the changes that will be unveiled with the Law Society of Upper Canada’s Law Practice Program (LPP) as an alternative to articling. Who will provide the LPP? The LSUC plans to release an RFP early in 2013. Word on the street is that there are several interested prospective providers. Law schools in Ontario and across Canada are watching carefully, as are Law Societies in the rest of the country as well as the FLSC because . . .

7. FLSC National Admission Standards

As the same time as the LSUC is changing the admission requirements to be called to the bar in Ontario, the FLSC is embarked on a project to harmonize admission standards to the bar across the country. How will this mesh with the changes in Ontario? Many people are wondering…

6. New Canadian law schools in Canada (and abroad?)

In the fall of 2013, Lakehead University in Thunder Bay will welcome the inaugural class of 55 students to its Faculty of Law. This will be the first new law faculty in Ontario in over four decades (Windsor 1968). In 2012, Thompson Rivers University (TRU Law) (Kamloops, BC) opened the first new law school in Canada in over three decades. Not to be confused with TRU Law, Trinity Western University (TWU Law) has plans to open the first private and first faith-based law school in Canada. Meanwhile, law schools outside of Canada are aggressively marketing to prospective Canadian students. These include Bond University in Australia and Leicester University in England. Perhaps the most interesting development to watch in 2013 is Arizona State University’s Sandra Day O’Connor College of the Law’s new “North American Law Degree” specifically targeting Canadians.

5. Globalization and competition

As McCarthy Tetrault General Counsel Malcolm Mercer pointed out to me and members of the Canadian Association for Legal Ethics on our listerv, ” the approval of nearly 50 ABSs [Alternative Business Structures] . . . in England and Wales in 2012 (with the counterpoints of [the ABA’s Ethics 2020 Commission] electing to do nothing on the issue in the US and New South Wales in Australia having permitted non-lawyer ownership of ILPs [Incorporated Legal Practices] for the last decade without a “fitness to own” requirement) is important context and perhaps impetus for Canada”. Indeed. I would also add that should such entities ever decide to expand their business to Canada, there would be competition issues.

4. Civility

A LSUC hearing panel must hand down its sanction in the Groia decision. According to reports, the LSUC is seeking to suspend Groia for 2-4 months and impose costs of a $250,000 against him. The civility debate will continue in 2013 with inevitable appeals, likely ending up in the courts.

3. LSUC Discipline Case against Torys lawyers

Remember the LSUC’s conflict of interest discipline hearing against Torys lawyers Beth DeMerchant (now retired) and Darren Sukonick? It started in 2009 and a decision is expected in 2013.

2. The Next Step in Regulation of the Practice of Law: The Regulation of Law Firms 

In 2012, the BC legislature amended the Legal Profession Act to enable the LSBC to regulate law firms. The Nova Scotia Barristers’ Society already has this power and the Barreau du Quebec has some limited powers in this area as I outlined in a 2012 Canadian Bar Review article. This is a significant (and I would say a natural and obvious) step for law societies. But it will entail a big change in the regulation of the practice of law in Canada.

1. Access to Justice (still. . .)

Sigh. The drum beats on. Latest on unrepresented litigants in the Ottawa Citizen. More speeches from judges. More frustration from the public. What will Law Societies do? What will governments do?

Happy 2013, Canadian legal profession!

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  1. The Law Society of Newfoundland and Labrador adopted a new Code of Professional Conducted based on the FLSC model effective January 1, 2013. See http://www.lawsociety.nf.ca/Code%20of%20Professional%20Conduct%20-%20Jan%202013.pdf.