Column

Beyond the Quid Pro Quo Premise: The Legal Profession and the Public Interest

The Canadian legal profession has never been shy to rationalize and justify its role in society. The public relations campaign launched by the Ontario Bar Association in February is just the latest in a long history of institutional advertising efforts tracing as far back as the 1930s when the Saskatchewan Law Society placed a series of advertisements in a farm weekly.

A new urgency, however, now colours our collective efforts. What it means (and will mean) to be a lawyer has perhaps never been more uncertain. In other jurisdictions, new and disruptive business structures are radically changing once taken-for-granted “rules of the game” for the delivery of legal services. New technology is displacing the need for lawyers to perform certain tasks and will continue to do so. On top of this, our country is neck-deep in a seemingly perpetual access to justice crisis that has seriously undermined the public’s confidence in the ability of the legal profession to respect and protect their interests. The list of challenges, as we all know, goes on.

How should we, then, seek to understand and explain ourselves in this tumultuous time?

A suggestion: much more ambitiously.

One lingering problem with how we talk about lawyering is just how often it seems to be fed through a narrow lens of what we, as lawyers, want/need/think is best. This plays out in a variety of ways. Mitch Kowalski has, for example, thoughtfully explored the ways in which the legal profession’s narrow self-interested stance has impeded the introduction of innovative models of legal service delivery.

Here I want to home in on a different manifestation of this problem: what I call the “quid pro quo premise.” In using this expression, I refer to the tendency of the legal profession to frame its public interest obligations through the lens of what we “get in return.” In its most extreme form, those who deploy the quid pro premise seem to suggest that the very existence of public interest obligations is, in fact, a result of certain benefits currently enjoyed by lawyers.

An example helps to illustrate the point. In a recent edition of the Canadian Lawyer, a columnist wrote “Lawyers have a monopoly on the practice of law, and with that comes a duty to exercise our skills in the public interest.” The underlying premise of this statement seems to be that public interest obligations arise because of a monopoly enjoyed by lawyers or, in other words, that the existence of public interest obligations is predicated on the ability of lawyers to undertake monopolistic practices (and to enjoy the financial benefits that accrue from such practices). The message seems to be that a bargain has been struck: we give you monopoly and you give us services in the public interest. There is, it appears, a quid pro quo of sorts.

Similar arguments are often made in relation to self-regulatory powers. With moves away from self-regulation in Australia and England and Wales, Canadian lawyers have been prone in recent years to warn themselves that failures to act in the public interest may result in the (unwelcome) intervention of external regulators. Indeed, immediately preceding the above quotation from the Canadian Lawyer article is the warning “[a]s seen in other Commonwealth jurisdictions, there are profound consequences if the public loses faith in the legal profession’s ability to serve their interests: we may lose our ability to self-regulate.”

By way of another example, in his 2011 speech to the Canadian Bar Association, Governor General David Johnston argued that:

We enjoy a monopoly to practise law. In return, we are duty bound to serve our clients competently, to improve justice and to continuously create the good. That’s the deal.

What happens if we fail to meet our obligations under the social contract? Society will change the social contract, and redefine professionalism for us. Regulation and change will be forced upon us—quite possibly in forms which diminish or remove our self-regulatory privilege.

The problem lies in how public interest obligations are framed in these statements and others like them. Public interest obligations are approached as being tied to what lawyers “get in return” (i.e. the ability to engage in monopolistic practice and/or the ability to self-regulate). This gives rise to a number of concerns.

First, the fundamentally contingent nature of this framing is problematic. If the way we understand the legal profession’s public interest obligations is primarily or exclusively through the lens of benefits accruing to lawyers, what happens if and when lawyers lose the benefits in question? The public interest obligations surely survive, but what, then, is our account of them?

This is far from a hypothetical concern. In recent decades, Canadian lawyers have seen their market monopoly eroded as they have unsuccessfully fended off various competitors, with paralegals and non-lawyer immigration consultants being two obvious examples. The claim of Canadian lawyers to self-regulation has also faced challenges on several fronts. Take, for example, the Ontario Court of Appeal’s decision in Wilder v. Ontario Securities Commission rejecting arguments that the Law Society has exclusive jurisdiction to regulate the professional conduct of lawyers and allowing the Ontario Securities Commission to discipline lawyers in certain circumstances.

While none of these developments has resulted in a radical disruption in the lives of Canadian lawyers, they do represent meaningful cracks in the profession’s historical market and regulatory powers. Simply as an empirical matter, the quid pro quo premise seems to rest on some relatively shaky foundations.

Second, there are some additional concerns from a legal ethics standpoint. Framing obligations to act in the public interest in relation to self-interested benefits accruing to the legal profession risks encouraging a professional ethic that treats public interest obligations as open to trade-offs where other benefits loom larger. In other words, there is a danger that the self-interested nature of the quid pro quo premise will, in turn, foster a self-interested approach to ethical conduct that focuses on minimal compliance with ethical obligations (i.e. what one can “get away with”) in the name of maximizing personal or institutional self-interests (in profits or reputation, for example).

Not every Canadian lawyer, of course, conceives of his or her public interest obligations in terms of what it means to his or her pocketbook or prestige. I’d guess optimistically that most probably don’t.

Nevertheless, our public discourse about the public interest obligation often draws heavily on arguments or statements rooted in the quid pro quo premise. This gives rise to tangible risks, like those in relation to adoption of self-interested ethical perspectives as discussed above. It also means that we lose the chance to speak to each other and to the public about more fundamental values that underlie the role of lawyers in our society.

There are better ways to talk about the relationship between lawyers and the public interest. Rather than fall back on self-interested explanations that invoke monopoly and self-regulatory powers that may soon not even exist, let’s choose to explain ourselves in the context of substantive values such as dignity, equality, justice, and democracy.

To be sure, many thoughtful lawyers and legal academics have been having these types of conversations for many years. The so-called “jurisprudential turn in legal ethics” is a powerful recent example on the academic side of things. It is all the more troubling, then, that the quid pro quo premise seems to have so much play in contemporary discussions about lawyering.

So, let’s move beyond the quid pro quo premise. The public deserves a more ambitious account of lawyering and, with all the challenges for the legal profession in the years ahead, this is no time for Canadian lawyers to be uncharacteristically shy.

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Comments

  1. One of the better discussions I have seen in a quite a while regarding the issue of self-regulation, and one that is particularly timely.

    As a current Bencher with the Law Society of Alberta, I can attest to the seriousness with which we regard our duties to the public, and to the system at large – and it is with a certain degree of curiosity and, possibly trepidation, that I have become more aware in the context of my work, with the changes occurring elsewhere (U.K and Australia) relative to the issue of self-regulation.

    And I think you are particularly correct when you raise concerns over the odd sort of bargain implicit in self-regulation which bodes to be potentially harmful to the public and the profession if we fail to reconsider whether self-regulation is, indeed, a “bargain”, or whether it is simply one facet of an independant legal system that stands, in fact, alone as a benefit to the legal system – unconnected to any “bargain” or “quid pro quo”. And whether matters such as public interest and legal ethics are unconnected to any “bargain” but just an inherent part of what makes us “lawyers”.

    However – if we tell ourselves it IS a bargain, or we suggest to the public that they may wish to “avoid the contract” so to speak – one might reasonably ask, “what then?”

    I continue to be very wary of the U.K. experience.

    The U.K. Government seeks an “independant” report on the functioning of the system and commissions a “neutral” party to create a report – Sir David Clementi – former Governor of the Bank of England – a financial expert.

    The report recommends, among other things, that the government takes over regulation of lawyers, that legal services become increasingly deregulated and that private business be permitted to offer legal services, through non-lawyer equity business owners in lawfirms.

    The Government takes that report, adopts its recommendations, and suddenly, the Legal Services Authority is created, where the government oversees the legal profession, 75% of legal services are opened to delivery by non-lawyers, and non-lawyers are permitted to “own” lawfirms, what are now referred to as “Alternative Busienss Structures” (ABS).

    What happens to Sir David Clementi?

    Well, he becomes the Chairman of Virgin Money – one of the U.K.’s newest banks, and, no shock, a business venture that includes in its portfolio, the delivery of legal services.

    Now.

    Consider – just for a moment – that the “bargain” of self-regulation has been set aside – such that there is, in theory, a much lower expecation by the public and by the profession relative to legal professionals’ obligations to the “public good”.

    Now combine that with the concept of ownership of legal service businesses by broad financial-based intersets – like, say, Lehman Brothers or Bear Stearns.

    How could that possibly bode ill for the general public?