Column

Who’s a Law Society For?

Canadian law societies operate under a public interest mandate. This premise is often presented without much fanfare or introspection – as a fait accompli, as a matter of common sense, as something always there and always having been there. And, to be sure, there is a way that this framing makes eminent sense. It’s a legal reality as reflected in legislation governing law societies. And, on a more conceptual level, if not for a concern for the public interest, why regulate lawyers at all?

However, once we peel back even a few layers of the onion skin, it quickly becomes apparent that any type of robust embrace of a public interest mandate by Canadian law societies is a relatively modern phenomenon. In Ontario, for example, a public interest mandate for the province’s law society has only been a legal reality for the last ten years following legislative amendments in 2007. And, of course, as a practical matter, there are many historical examples of Canadian law societies operating with a razor-sharp focus on promoting the interests of members, over and above any credibly presented concern for the public interest. The general contours of many of these examples will be well-known to most readers. Exclusionary entrance rules, advertising bans and other protectionist regulations to limit competition are a few familiar cases.

Given the ease with which history can be dismissed as, well, “history”, it is perhaps worthwhile to pause to consider how recently certain members-over-public impulses were indulged, if not vigourously defended, by law societies and their members:

  • As I’ve written about in detail elsewhere, “as late as the 1970s, it was an open question as to whether law societies even had the jurisdiction to regulate post-entry competence.” Stated otherwise, several decades ago, people debated whether it was proper law society business to investigate if lawyers, once called to the bar, could actually do their jobs properly.
  • Also in the 1970s: “violent opposition” on the part of the Law Society of Upper Canada to the opening of legal aid clinics in Ontario (see Malcolm Mercer’s discussion of this in Slaw here).
  • Moving to the 1980s: it took empowering the courts with the Charter before bar entrance requirements banning non-citizens and bans on inter-provincial law firms were removed (Andrews v Law Society of British Columbia [1989] 1 SCR 143 and Black v Law Society of Alberta [1989] 1 SCR 591, respectively).
  • This same decade, the Law Society of Upper Canada Treasurer is quoted as promising colleagues that the Law Society would “prosecute the hell” out of paralegals competing with lawyers to provide cheaper legal services to the public in certain areas (for more, see Paula Pevato, “Should Law Societies ‘Prosecute the Hell’ out of Independent Paralegal Firms” (1991) 7 J l & Soc Pol’y 215).
  • Moving to the 1990s, when the Law Society of Upper Canada circulated a “Role Statement” to members which explicitly mentioned the public interest, a third of the respondents did not agree that the Law Society should subordinate members’ interests to public interest and almost half didn’t agree that Law Society did not exist to advance members’ interests (for more, see Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1797-1997 (Toronto: University of Toronto Press, 1997). 1

I’m sure more and possibly even better examples could be presented. The above examples are simply those that easily came to my mind and are admittedly Ontario-centric as this is the jurisdiction that I am most familiar with. The point is that Canadian law societies have, for a long time, taken steps or expressed positions that are not in line with a regulator who is robustly embracing the public interest over member self-interests.

I think that it is fair to say, however, that more recently this has begun to change. Canadian law societies have started to flex historically dormant (or non-existent) regulatory muscles with a view to more vigourously advancing public interest goals. To offer a few examples: lawyer disciplinary systems are much more (if still imperfectly) transparent and professionalized; lawyers now have more tools available to them to ensure that they deliver good quality legal services to the public; and the public now has more (if still limited) options regarding the delivery of legal services (like, for example, licensed paralegals in Ontario and unbundled legal services).

In many ways, Canadian law societies are still testing out what a robust commitment to the public interest best looks like. These efforts have not been without controversy. The recent Groia case heard before the Supreme Court of Canada is one compelling example of how tough questions and line-drawing exercises can arise when a lawyer regulator looks beyond its members and attempts to safeguard broader public concerns such as the administration of justice.

The fact that pursuing a robust commitment to the public interest may be controversial does not mean, however, that law societies should be reticent or timid to assert themselves as modern regulators with ambitious mandates. Yes, there may be tough questions. It is the job of law societies to grapple with these. There are also going to easy questions, like, for example, whether a regulator acting under a public interest mandate should have an accurate name that the public understands or provide its imprimatur to – as one national newspaper has put it – a “gay-free” law school or, indeed, to take the highest profile example of late, require its members to act in ways that promote equality, diversity and inclusion.2 I don’t say that these questions are easy because everyone will agree on them – clearly people have not and do not. I do think, however, that the basic calculus on each is straightforward: for the name change, accuracy and accessibility to the public trump lawyer fondness of tradition 3 and, as for TWU and the Statement of Principles, the rule of law demands no less than a full-throated defence and pursuit of equality, diversity and inclusion. (And, yes, even if some lawyers personally believe that gay sex or marriage is gross or wrong or in their hearts contentiously object to equality, diversity and inclusion, the public interest requires the regulator and the profession act in ways that protect and foster these values – as Tina Lie rightly put it in a recent interview with the Toronto Star, these values go “to the core of the administration of justice”). To be sure, in operationalizing these initiatives, the details matter and there are better and worse choices to be made (insert sigh of relief that LSUC is not going to be LPOO – Legal Professionals Organization of Ontario). And, in embracing newly robust commitments to the public interest, law societies are susceptible to making mistakes (for example, many people who support the Statement of Principles requirement have also been critical about how it was presented to licensees).

The answer to controversy and missteps, however, cannot be for law societies to abandon an ambitious embrace of the public interest or for members to focus their energies on tearing them down. Law societies in no way deserve or require their members’ acquiescence or uncritical agreement. But, they do have a lot of catching up and learning to do in pursuing a new robust commitment to the public interest. They need the help of their members to do so. Why not try to get it right together?

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(1) Interestingly, in his book, Moore also recounts how critiquing the Role Statement became an issue in the subsequent bencher election with one candidate declaring “‘To Serve and Protect Lawyers’ should be the motto of the society” and another candidate proclaiming “It is time to put the needs of the profession to the forefront” (pp. 337-338).

(2) For greater clarity: I submit that the answers to the above questions are, respectively, “yes”, “no”, and “yes”.

(3) On this, I largely agree and draw inspiration from Bob Tarantino’s Twitter thread found here: https://twitter.com/bobtarantino/status/912395724670881793

Comments

  1. Amy has for many years recognized that the nature of law societies cannot be measured by what is happening in Ontario alone. Across the country, with mixed successes, law societies have endeavored to become more focused on protecting and promoting the public interest. Many still lapse into ‘lawyercentric’ or profession promotion/protection, but there is, in some provinces, a willingness to discuss and question if that work should be in the law society domain.
    Here is Nova Scotia we are well on the way to implementing legal services regulation that is premised on three principles. Regulation must be risk focused. It must be proactive, principled and proportionate (‘Triple P’) and it must have clear and demonstrable outcomes. These three concepts are now built into all our work as we roll out our model of law firm regulation. All of this has the promotion of the public’s interest in the delivery of legal services at its core. For those who want to know more, they can find much information at
    http://nsbs.org/legal-services-regulation

  2. Gordon Turriff, Q.C.

    From at least 2002, when I became a bencher of the Law Society of British Columbia, and throughout the ensuing eight years, ending with my presidency of the Society, the Society’s answer to Professor Salyzyn’s question was indubitably “For the public”. The benchers who succeeded me have striven to ensure their answer has been the same. This does not mean that benchers can’t be better than they are at identifying and promoting the public interest, but it does mean, as I have said many times, that the important question now is not who they are for (that is old news, at least in B.C.), but how well they discharge the public interest mandate. Part of the work of the benchers in British Columbia has been to ensure that lawyers, and all other people in the community, understand that the Canadian Bar Association and other similar advocacy organisations, not the law societies, look out for lawyers’ interests.

    (Incidentally, at a meeting of the Federation of Law Societies of Canada in about 2008, I good-naturedly mocked Ontario’s regulators by asking whether members of the public might be a little confused upon learning that the “Treasurer” of the “Law Society” of “Upper Canada” presided over the “benchers” of the society in “convocation”).

  3. Of course it’s obvious that the Canadian Bar Association exists to serve the interests of its members – in fact all lawyers, not just those who choose to join the CBA.

    But the reality is that the law societies too serve the interests of the profession, not the public interest. I am quite sure that there are some (perhaps many) lawyers who agree with that, though few if any who will say so on the record. I note that the BC Branch of the CBA has its office in the same building as the LSBC – at 845 Cambie Street.

    Why should such co-location be a cause for any concern? Ideally it shouldn’t. It is because there’s substance to my claim that the public interest isn’t being served. I wouldn’t remark on the co-location if I believed the law societies were in fact serving the public interest.

    This reminds me of something I learned years ago – thanks to one of the BC government lawyers with whom I’ve contended. It’s regarding a building in Whitehorse constructed to house both courts and the Ministry of Attorney General. Certain changes were made to the physical arrangement because of concern about the optics. I mentioned that in a more extensive post I made at this link – https://bctrialofbasi-virk.blogspot.ca/2010/01/strange-strange-strange-appointment-of.html – back in January 2010.

    Optics wouldn’t be an issue for anyone, if the public had faith in all these institutions.

  4. Not so! Law societies don’t serve the public interest as long as they don’t try to solve “the unaffordable legal services problem.” Two factors that law societies refuse to change make solving that problem impossible: (1) law societies’ 19th century management structure. And so they are now like a government without a civil service—the resulting ignorance means that they cannot govern, which is why the problem exists and persists. And (2), the obsolete way lawyers do their work to produce legal services.
    There’s been no pressure to evolve law society management structure, and so they don’t sponsor the necessary evolution in legal services’ production methods, as has been on-going for 100+ years in the production of everything else (that isn’t controlled by a similar monopoly). Therefore, there are no economies-of-scale in the practice of law, which is the cause of the problem. For 100+ years such cottage industry methods have been replaced with support services methods of production.
    We must either abolish our law societies, or change their management structure so that they do have a permanent civil service—only one for all societies in Canada. Such national problems require national solutions. So pressure your law society benchers to change, instead of being law society apologists.
    Such talk about law societies changing to serve the public interest is talk about comparatively trivial changes. None can change the fact that the majority of the population cannot afford a lawyer’s advice, i.e., that the legal profession has priced itself beyond the majority of the population, and therefore, the majority of law firms is short, if not very short of clients. For the solution to the problem, see: Ken Chasse,
    “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (SSRN, pdf., August 29, 2017), at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811627 .

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