Taking Self-Regulation for Granted?

“It is not a right. Self-regulation is very much a privilege.” So declared Premier Christy Clark at the end of June when she announced that the BC government would take over regulation of the real estate industry in that province.

As those in BC know, the BC housing market has been on fire over the past year. Potential home buyers face a crisis of affordability. Questionable practices by some real estate agents and a failure to respond by the Real Estate Council of British Columbia (RECBC) fuelled a crisis of confidence in the regulator. And the government stepped in.

We need to be cautious about any lessons to be drawn from the BC real estate experience. It is certainly not fair to attribute the crisis of affordability to alleged lax regulation by the self-regulating RECBC. The RECBC was, perhaps, an easy target in the midst of a political firestorm. 2017 is an election year in BC and it is likely that housing affordability will continue to be a top campaign issue.

But yet self-regulation of the legal profession in Canada faces remarkably similar vulnerabilities. We have a largely unaffordable justice system where costs continue to spiral out of control. It is surprising that no grassroots indignation has yet to boil over into the political realm. Law Societies purport to regulate lawyers’ fees (Model Code Rule 3.6) but have completely abdicated responsibility on this front. The public may rightly ask why?

To their credit, Law Societies have belatedly embraced access to justice as a regulatory concern. But as cases like Groia in Ontario and Laarakker in BC show, Law Societies continue to be distracted by concerns that are unlikely to be priorities to clients or members of the public. Christy Clark could have been reminding law societies when she lectured: “The point of regulation is to protect people, to protect consumers.” All regulators need to heed this lesson, but particularly those who are self-regulating like Canadian law societies.

Law Societies have never had a problem articulating their mission; it has been uniform and consistent for over two hundred years in Canada – to regulate the practice of law in the public interest. What has been more problematic historically is how Law Societies have interpreted this mission and how they have arguably strayed from it. Regulating legal services in the public interest means protecting the public and protecting consumers; it does not mean protecting the profession against competition or protecting it against reputational harm. For everything that Law Societies do, they should be judged against this public interest mandate. Law Societies should be asked – and should be asking themselves – how their actions in a particular area and in any case protect people or protect consumers. This is why I find cases like Groia and Laarakker so frustrating. In Groia, the Law Society of Upper Canada has spent a decade prosecuting a lawyer for conduct in the courtroom that had no impact on the public or on clients. The cost to the Law Society in terms of staff time, bencher time and legal fees must be enormous; the opportunity cost of what could have been done in its stead staggering. On Laarakker, the Law Society of British Columbia completely missed the boat, targeting a lawyer who stood up for members of the public against a practice described by Alice Woolley as “extortion with letterhead”. Law Societies should be going after the abusive practice of shoplifting demand letters that has been well-documented by my colleague Amy Salyzyn. Instead, they have done nothing and allowed this abusive practice to persist for decades.

Law Societies would be wise to remember Premier Clark’s words or they may end up finding themselves listening to a similar lecture from another premier one day.


  1. Gordon Turriff, Q.C.

    Because lawyer independence is an element of the rule of law, arguably lawyer self-regulation is a constitutional imperative, not a privilege.

    The courts have regulated solicitors’ charges in England since at least 1729. I think I’m right in saying the courts have always regulated lawyers’ charges all across Canada. The law societies should not do what the courts do very satisfactorily. That doesn’t mean the law societies should not inquire into cases where lawyers have charged dishonestly or, to give another example, fee disputes reveal incompetence.

    The matter of what should interest any particular law society will often be a matter of opinion. The most important thing is to get the right benchers. Bencher elections should be contests of reputation, not popularity contests. Benchers should be people of high integrity who can resist the temptation of putting private interest ahead of the public interest. In my eight years as a bencher in British Columbia, private interest was smothered at the committee and bencher tables.

  2. Thank you, Adam, for this. In the UK, a large chink was driven into the armour of self-regulation when it appeared to the government that the job was not being done well enough. You are right that it is not simply a question of handling complaints quickly and efficiently, but of making sure that access to justice is only for the the tops and bottoms of the economic scale. Perhaps we should also do a better job pointing out to governments, and even to the courts, when they make access more difficult or more expensive.

  3. To anyone that knows the whole story of the LSUC’s response to the competitive threat posed by title insurers the day for Premier Clark’s admonition arrived long ago.

  4. For at least British Columbia members of the public that might be reading this post, it might be useful to note that lawyer’s services are taxed in British Columbia and that the very significant revenue generated on that tax is directed not to legal aid or other programs that could assist with access or affordability – but instead into general revenue.
    I would welcome a discussion with at least the BC government that talked about access/affordability and the public interest. It would seem to me a precondition, however, that a tax on legal services – that has the effect of making legal services more expensive – would be re-directed immediately into legal aid and access to justice programs instead of the general revenue stream.