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We Have Lost the Self-Regulation Argument: With or Without Us, the Public Is Moving On

My inbox fills up each day with messages from members of the public (NSRLP has an active public email, answered by dedicated NSRLP research assistants, but many SRLs write me directly).

It is still not well understood that the vast majority of SRLs are still looking for and extremely desirous of legal help. In my 2013 study, this figure was 86%. Similar results are reported by studies in the US, England and Wales, Australia, New Zealand, and Northern Ireland. All these studies also found that by far the most significant reason for self-representation is lack of funds, or exhaustion of available funds (half the SRLs you meet).

If your mind is going to that defiant SRL you met last week in court who told you they didn’t want a lawyer, please think about this for a minute.

How many people (who are already feeling powerless) will admit to being short of cash? Is defiance really a reliable indicator of financial viability in the face of legal bills? And how many people who have already spent $50,000 on legal services and now have to self-represent because they are out of funds do you suppose will think that this was good value-for-money?

How is this serving the public interest?

The meta-message that underlies the calls for help that come in every day to the NSRLP is how can we trust the legal profession to serve the public interest – the so-called “bargain of self-regulation” – when up to 80% of people come to court without lawyers because they are unable to afford, or continue to afford, to pay for legal services?

Or when the legal profession in Ontario and British Columbia continue to stall and block the provision of affordable services for individuals other than lawyers? Chastising the public as if it is a small child and the legal profession its parent: “why know better, trust us.”

When the possibility of self-interest in blocking competition is obvious to anyone with a pulse.

How does the profession serve the public interest when it is exclusively responsible for investigating complaints against lawyers and disciplining them – and when information about the outcomes of complaints brought against lawyers by members of the public is hidden from public view? Isn’t this also a conflict of interest, I am asked over and over again?

Ordinary Canadians everywhere understand that the emperor has no clothes here. They can see an inevitable tension and likely conflict between the role of the individual lawyer to uphold their clients’ interests, on the one hand, and as protector of the public interest, on the other. It’s time to accept that this is how most members of the public think about this issue.

Consumers of professional services in the Internet age no longer accept the conflict of interest that is manifest in allowing powerful monopolistic professions to regulate themselves.

It’s over

When the emails ask me – how can this be OK? – I do not know how to respond other than to say, it is not. Because I now find it to be indefensible.

In England & Wales and in Australia (especially in Queensland and New South Wales), similar public outrage at exactly the same things has produced a range of experiments with alternatives to self-regulation.

What Richard Devlin and Porter Hefferman picturesquely described as “rumblings in the peaceable kingdom” of the Canadian legal profession back in 2008, have now reached the a sustained roar of public disapproval. It is well past time to act.

A public belief in the legal profession to regulate itself in a way that is fair and transparent and protects public interests rather than protecting their own will never return. This is no longer fixable.

I no longer see a feasible alternative to or a plausible argument for the continuing self-regulation of the legal profession. I would encourage readers of this blog to join me in declaring this publicly.

I feel passionately about the profession I have given my working life to. There are many wonderful lawyers out there. I know lots of them. Their reputation too is being trashed by our institutional myopia and defensiveness on this issue.

Lawyers who truly care about the future of their profession should declare their willingness to look at alternatives to self-regulation.

What replaces self-regulation and would it be any better?

This question – along with cries of “traitor”! – has often closed down discussion in the past, but cannot be allowed to paralyze us any longer.

The end of self-regulation does not mean it never worked, or that improved models of self-regulation (for example the addition of an independent Commissioner here and there) might not make marginal differences.

But marginal differences are not enough. We need to rethink our assumptions and reach for new ideas – and there are lots out there. We need empirical data that tests different models, including but not limited to joint court/ profession regulation, court/government/profession regulation, or no regulation at all (the market model, fast becoming a default: look on Craig’s List). Models that experiment with separating licensing from discipline processes. Or permitting partnerships among lawyers and other professionals. Among many others…

The Utah Supreme Court “regulatory sandbox” is by far the most impressive example of this grounded approach in practice. Having established a new branch of the legal profession (Licensed Paralegal Practitioners, also known as Limited Licence Legal Technicians in Washington State) in 2015, Utah’s Supreme Court has now launched a new regulatory body, under its supervision, that will advance and implement a risk-based, empirically-grounded regulatory process for legal service entities.

The types of providers anticipated include software companies developing online legal resources, para-professionals in not-for-profits offering advice in their area of expertise – imagine eviction, immigration, benefits – or accounting companies offering legal services as part of its overall service package. Participating in the “sandbox” as a pilot requires each services provider to collect and share data with the regulator that identifies, measures, and assesses potential consumer risk.

If we were to do this in Canada, either province-by-province or better still as a national co-ordinated action plan (with timelines!), we would have data that could be used to make decisions. We would finally have something to show the public when they ask if anything is ever going to change (and I would finally have something practical and concrete to tell the SRLs who write us every day in despair).

We could stop having debates in which people assert their certainty about all the stuff that “won’t work” and instead have discussions based on real experiences and consumer input. It would enable us to develop new regulatory models for what Utah calls “consumer-facing legal services …targeted at the risks posed to the purchasers of legal services.”

The public at large and SRLs in particular no longer believe that the regulation of legal services by the legal profession is about protecting them and their interests. And please: the issue is no longer whether or not they are correct or even fair in this assessment. It’s over: the argument has been lost. Let’s move on and make a plan to protect the future of credible legal services.

Comments

  1. I believe to make a real complaint system for Lawyers happen , we must caterguise all the areas of concern with consequences if the Lawyer breach’s any of these areas .
    Example: A Lawyer has a duty to be timely ,
    Any Lawyer that receives or files a document with the courts & or other parties must sent a copy of these documents within 5 working to their client(s) . A failure of a Lawyer to do so will result in an automatic fine of $10,000.00
    If the Lawyer takes so long that the client cannot proceed with their case because of over the time limit to file or continue their action then said Lawyer will have to pay what ever his/her client was asking for in their action .

    There must be a permanent record online for Lawyers so the public & or panel handling this complaint , can check at any time if this Lawyer is competent or not . All complaints made will go online under said Lawyers name

    This will be enforced/collected by the Government for any victim making a complaint to a government about any Lawyer ( Victims should not have to pay more monies to get justice /retribution from an incompetent lawyer the way it is set up now )

    It has to be set up like traffic Laws : You fail to stop at a stop sign , you must pay this much , you drink & drive , then this is what happens ? It must be the same for Lawyers

    Spell it out , that way we do not get individual interpretations on the same issues /breaches made by Lawyers

  2. The move away from self-regulation in the UK and Australia came after those law societies failed to address the issues internally, ignoring the recommendations of commissions on specific issues and the many public complaints. The Law Society of Ontario seems determined to repeat that pattern of stonewalling and failing to be transparent. As examples:-
    .
    In his 2014, 2015 and 2016 reports the Complaints Resolution Commissioner identified concerns that some closing letters for investigations did not provide adequate reasons to support the outcome of investigations and recommended greater transparency.
    The LSO response was to do the opposite and move “towards providing complainants with far shorter closing letters…..the new format often results in a product that is short on analysis of the issues and the reasons supporting the conclusions reached in the investigation.” (2017 CRC report)
    .
    The Complaints Resolution Commissioner’s 2017 also identified a “fundamental principle that complainants should be entitled to receive and respond to a licensee’s response to the complaint, with the extent to which it is shared- either in full, in part (through redaction) or by way of a detailed summary- dependent upon reasonably raised confidentiality or sensitivity concerns.”
    The LSO response was to this suggestion for greater transparency was…..[crickets].
    .
    In 2016, the LSO reorganised the complaints investigation section. The changes reduced the number of complaints which were eligible for review by the Complaints Resolution Commissioner to one-quarter their previous level. Once again, the LSO reduced the transparency of the process.
    .
    In early 2017, the Bonkalo report was released. More than 2 years later, what actions have the LSO taken to implement those recommendations?
    .
    It seems to me that the LSO is making a very strong case that it should not be regulating itself.

  3. I am often reminded of what our Prime Minister said to China, when they demanded the release of the executive of Huawei. He said that No one is above the rule of law.

    That is a very simple but true statement if every time a system of accountability is put into place. Yes I understand many government officials including Judges and tribunal decision makers should not be held accountable for “good faith” mistakes. I don’t think anyone would disagree with that.

    However, what about when an individual makes a “bad faith” mistake? Then I strongly believe that individual should be held accountable to the fullest extent of the law. Whether they be a janitor, a judge, an executive at Huawei, or a lawyer!

    Most of all the accountability process MUST been seen as fair and impartial or we are not a just and true society!

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