Column

Independence and Self-Regulation: I’m OK but I’m Not So Sure About You!

It is entirely human to fail to appreciate when one’s judgment is affected by a conflicting personal interest or duty. Our conflicts rules reflect this problem. Where there is a substantial risk of impairment of representation, clients get to decide whether to accept that risk. Where representation will be materially impaired, lawyers cannot act even with client consent.

This concern about conflicting interests is well rooted in behavioural psychology. Dan Ariely, an author and a professor of psychology and behavioural economics[i], writes on this topic[ii].

In his book The Honest Truth about Dishonesty, Professor Ariely describes an experiment in which participants were asked to view and rate sixty paintings. Each participant was paid an honorarium. The wrinkle in the experiment was each participant was told that their honorarium was sponsored by one of two art galleries. Each painting was presented as if it came from one or the other sponsoring gallery. After rating the sixty paintings, each participant was asked whether the sponsor’s logo affected their ratings. The participants universally thought not. Yet they were wrong. There was a substantial effect. And the effect increased with the amount of the honorarium. It is startling that independent judgment could be so easily skewed and that the participant wold not perceive the skewing.

Professor Ariely says that “While we may realize that such conflicts exist and that they influence others, we fail dramatically in perceiving both the extent of their effects and our own susceptibility to them”[iii]. He describes a lecture that he gave to about two thousand members of the American Medical Association during which he asked the physicians whether they felt that their medical judgments were affected by conflicts of interests with their hospital, drug manufacturers, insurance companies, medical device manufacturers or pharmaceutical sales representatives. Not a single physician raised their hand. But nearly ever hand was raised when he asked whether the audience believed that the majority of other physicians in the room were influenced!

In a democratic society that honours the rule of law, independence of legal counsel from the state is particularly important. This is particularly true in criminal and charter cases. But independence matters in many other areas given the omnipresence of government regulation and the power, political and economic, of the state in modern society.

Canadian law society regulation takes this thought of independence to another level. Canadian law societies, unlike the regulators in Australia and England, are independent of the state. Unlike in the United States, Canadian law societies are also independent of the judiciary. In this way, independence of individual lawyers is protected both by limiting potential control of individual counsel by the state or the judiciary and by the independent establishment of codes of conduct and other rules. This independence is achieved by the election of law society benchers by lawyers and, in Ontario, regulated paralegals.

There are advantages to self-regulation other than independence. Legal practitioners are well positioned to identify issues that need to be addressed in regulation, to establish appropriate codes of conduct and to sensibly judge professional conduct. It seems reasonable to think that a self-regulated profession is better attuned to its professional responsibilities.

There is of course a risk that self-regulation can be self-interested regulation rather than regulation in the public interest. It is not so long ago that there was debate about the primacy of the public interest although that issue is well-settled now. But mostly, there is little if any practical dissonance between the public interest and the interest of the profession. For example, the profession easily accepts that its members should be competent to practice and practice ethically.

But there are issues where the public interest and the interest of members of the profession are not entirely aligned, sometimes even opposed. There are also issues where interests of different parts of the profession differ from each other and from the public interest. In previous columns, I have referred to scholarly writing about some historic examples.

There is now a limited safeguard currently in place against self-interested self-regulation. In Canadian law societies, typically twenty percent or so of benchers are non-lawyers. These non-lawyer benchers are chosen by government in some provinces and by other means in other provinces. This is valuable both to assist the law societies in avoiding professional self-interest and by adding to the perspectives and expertise at the table when decisions are being made.

But the substantial majority of benchers are elected by the profession and are themselves regulated by the law society. Of course, there are advantages to elections for benchers. Because benchers are elected, their decisions will likely have greater credibility with their electorate. Elected benchers are more likely to understand the issues facing the profession. But there are problems as well. As in the painting rating experiment described by Professor Ariely, elected regulators will have a sense of loyalty to their electors; partly in gratitude for election, partly because of an interest in re-election and partly because a natural sense of a representative obligation to one’s electors. All of this compounds the potential bias that exists from regulating one’s self.

There is another difficulty with election in that the diversity of the profession is not necessarily reflected in election results nor are the required skills necessarily found in those elected. One common refrain in Ontario comes from solicitors who are concerned that their perspectives (and, tellingly, their interests) are not sufficiently reflected in election results.

The just-released report of the Canadian Bar Association Futures Initiative addresses this issue amongst a number of other important issues relating to legal education, innovation and ethics/regulation[iv].

Recommendation 11 from the Futures Initiative report is that:

The governing bodies of law societies should be made up of elected lawyers, as well as a significant number of appointed lawyers and non-lawyers. The appointed governors should be selected by an independent appointment process designed to fill gaps in experience, skills and diversity.

As the Report says:

Electing 80% of law society directors is problematic because it does not necessarily provide appropriate diversity of expertise, perspective, and lived experience; it can cause overrepresentation of some parts of the profession, and under-representation of others. Election of law society directors tends to result in a board that is older than the profession generally and less demographically diverse. Bringing different perspectives to governance serves the public interest because it grows capacity from under-represented groups within the leadership of law societies. It is also crucial to strengthening diversity and inclusivity in the profession, since the increased presence of diverse groups in the profession cannot alone affect the governing norms, privileges, and access to opportunities within the profession.

Similarly, the election of 80% of law society directors lends some truth to the perception that self-regulation may tend to protect the interests of the profession. Running for election risks creating the false belief among some law society directors that their role is to represent their electors, which may result in election platforms designed to be attractive to that group.

Not surprisingly, elected benchers tend to be supportive of the current approach to selecting benchers. This is presumably in part because there is value to election. But it is probably true that elected benchers, being human, tend to think that a process that selected them must be a good process and that they themselves act entirely in the public interest despite being members of the profession and being elected.

To be facetious, just like the physicians in Professor Ariely’s audience, I have no concern about myself as an elected lawyer bencher but I do wonder about others! Less facetiously, it seems clear that being elected, and the proximity of the next election, affects decision-making at the bencher table particularly where professional self-interest is at stake. It also seems clear that greater diversity of perspective, experience and expertise would be valuable to bencher decision-making.

__________________________

[i] Professor Ariely’s laboratory at Duke University is the wonderfully named Center for Advanced Hindsight.

[ii] Predictably Irrational, The Upside of Irrationality, and The Honest Truth about Dishonesty

[iii] In his foreward as editor of The Best American Science and Nature Writing for 2012.

[iv] By way of full disclosure, I partcipated in the Futures Initiative as Lead of the Ethics/Regulatory Team together with a great team comprised of Kris Dangerfield of the Law Society of Manitoba, Lisa C. Fong of Ng Ariss Fong in Vancouver, Tony Kavanagh of Bueti Wasyliw Wiebe in Winnipeg, Harvey L. Morrison, of McInnes Cooper in Halifax, Professor Marie-Claude Rigaud of the Université de Montréal and Professor Alice C. Woolley of the University of Calgary.

Comments

  1. RE: “But there are issues where the public interest and the interest of members of the profession are not entirely aligned, sometimes even opposed.”

    Absolutely! One such issue is the perennial persistence of shoddy medico-legal “expert” opinion evidence in the Ontario auto insurance (personal injury) context. For years columns have appeared in the Toronto Sun calling for the purging of rogue (“hired gun”) experts. And yet to this day OTLA lawyers have said little – and done less – to make the promise of impartial and properly qualified experts (trotted out in Ontario 2010 New Rules of Civil Procedure) a reality rather than empty, self-aggrandizing rhetoric. So the question is this: whose interests are being served by systemic, shoddy medical opinion evidence long-proffered by dubious “experts” who have become professional vendors of expert testimony? The answer is simple – the personal injury lawyers benefits via protracted litigation spawned by endless bogus accusations of symptom exaggeration, malingering and/or pain magnification. On the other hand, the public (injured accident victims) suffer greatly when reasonable and necessary treatment is denied/delayed for months and even years on the basis of the expert opinion of even completely unqualified “experts”. (Ontario’s auto insurance adjudication is littered with such cases.) Yet just the other day Slaw presented a hand-wringing posting arguing that in terms of access to justice; “perfection” has become the “enemy of the good”. High sounding lawyerly self-descriptors such as this is are only possible for as long as discussions about access to justice are careful polemics devoid of the messy particulars in case after case after case. How are injured Ontario auto accident victims ever to access justice in a reasonable time period given personal injury lawyers “treat” rogue insurer experts as their cash cows?

  2. What a great piece!

    This shows that self-regulation is not only a macro issue but a micro issue. Malcolm’s description of the empirical research made me consider that most lawyers deal with conflicts of interest as a third rail problem, that as long as you stay clear you don’t have conflicts. In fact, all of our work manages a certain level of conflict and it is part of professional acclimatization to deal with it like the body learns to function with pain. I know that we teach ethics at the CLE level as a third rail issue, and not as skills integration issue. The research in Malcolm’s article suggests we have to revise our thinking.

  3. This statement should be framed for posterity. It is delusional.

    The “independence” of the both the Bar and the Bench in Canada is a bald fiction. That is why it is endlessly cited. For example, what we need is a government that is independent from the legal establishment. Read Fred Rodell’s famous (or infamous) “Woe Unto You, Lawyers”:

    http://www.constitution.org/lrev/rodell/woe_unto_you_lawyers.htm

    I am now struggling to prepare for a BCSC hearing in October to which the LSBC is the respondent. That means the Benchers. I have posted online the letter, signed by a government appointed bencher, that triggered this judicial review:

    http://www.uncharted.ca/images/users/ssigurdur/20140113_lsbc_benmeisnr_lttr.pdf

    That person does not represent the public interest. He was hand-picked (and ludicrously still claims to be an award winning journalist). The solution is to adopt the same practice as with jury selection. I’ve served on a jury, which currently is the only way in which the public gets to participate.

    The entire Canadian body politic, including the many agencies of the so-called justice system is rife with patronage. It’s time for someone in the legal establishment to find the courage to admit that.

  4. Anthony J Kavanagh (Winnipeg)

    Who is this Malcolm chap who writes so well and so provocatively?
    Seriously, I enjoyed this article and know full well his range of expertise in this area.

    I cannot agree more: adding a lay perspective to the workings of a self-regulated body has yielded a much needed perspective to the way such professions govern, and I am referring also to the plethora of other professional groups. It is not the panacea to all problems of course, but a darn good jolt to the psychological tendencies Malcolm and his research points to.

    I can only speak of my own Law Society and over the years I have served on committees with such lay members. Without hesitation such perspectives are valuable because they inform directly on the “public” interest, not merely in its purest intent, but in terms of common sense, and a sense of independent input. In my experience such voices are more valuable than they may seem because they serve as a guidepost and indeed an informal check and balance system. Such appointees are usually well regarded in their own right, that is very true in my own Province, but they are usually very astute and although diplomatic, not afraid to shout out that the Emperor wears no boxers. I have seen this in action, by solid piercing questions that zoom in on the heart of the issue. Often they ask plain questions that needed articulation but may not have been obvious according to the administrative guide-book. Sometimes they speak to mercy, but they keep us honest (especially about the subconscious “group speak” that can happen in the bubble of a particular task.

    Diversity is much more than a current trend, it is inherently valuable. I am not an elected Bencher, just a mere volunteer, and I wholeheartedly support such additional non-lawyer voices, even if it means knocking a few less lawyers off the self-regulating table (and I happen to think very, very well of most lawyers, bad apples aside). The model and election/appointment process may well need some retooling to ensure true diversity, but the thesis of adding more lay voices is a very welcome thing and ought to be embraced. Although the CBA proposes it, it is, interestingly, the regulators (and the Provinces) who must act on it of course. Such leadership will come from those Benchers like Malcolm who think outside their “bubble”.

  5. Law societies are obsolete. China’s lawyers can now read about it. The independence of Canada’s law societies from government intervention has meant that their performance shows that they cannot solve the problem, which is, “the majority of the population cannot obtain legal services at reasonable cost.” Therefore they have no purpose.

    The purpose of law societies is to make available to the public, legal services that are: (1) provided by lawyers who are competent; (2) ethically provided; and, (3) affordable. All issues concerning law societies, and the very poor forecasts that the careers of young lawyers will suffer, must be decided in relation to that problem.

    As I have written before (on the SSRN), it is this third duty that law societies refuse to accept—unaffordable legal services is their problem to solve, and it is their fault that it exists. Young lawyers should cut their losses by demanding that government intervene.

    My latest article on this problem, expressing these same criticisms, has been published on the chinalawinfo website of the Peking University Center for Legal Information. And, several of the in-depth articles that I have published on this subject can be downloaded freely from my author’s page of the Social Science Research Network. – Ken Chasse, LSUC (1966); LSBC (1978).