What “Protecting the Public” Really Means
Regulators of legal services often say that their most important job is to “protect the public.” If this statement is true, then we need to consider its implications for the future regulation of the legal profession. And that starts by posing a deceptively simple question:
What exactly do we mean by, “the public”?
When you hear that term, does it summon for you the image of a Fortune 500 GC? An assistant deputy minister in the government? An experienced construction company owner? Is that who you think of as “the public”? Probably not.
Instead, you think of ordinary people. Dads, cousins, and great-aunts; apartment dwellers, hourly-wage workers, and public-transit riders; working parents, mortgage payers, and pension hopefuls. “The public” means individuals with limited financial means and little knowledge of and experience with the law. When it comes to protecting “the public,” that’s who legal regulators think about, and rightly so.
But the corollary is that regulators are generally not that concerned with “protecting” the Fortune 500 GC, or the high-ranking ADM, or the sophisticated business owner. That’s not the “public” they’re worried about. And they devote relatively little attention to the lawyers who serve these types of clients because, rightly or wrongly, they believe:
(a) these clients are sufficiently sophisticated to take care of themselves when it comes to buying legal services; and
(b) the law firms that serve these clients are sufficiently reliable and high-quality that the regulator need only check on them occasionally.
Regulators have limited resources. They need to assess where those resources are best allocated in order to fulfill their mandate. So they allocate a small proportion to looking out for those members of “the public” who they believe can look out for themselves, and focus most of their time and effort trying to protect individuals who are inexperienced with and unsophisticated about legal services.
Now, there are really only two categories of suppliers to this part of the market: unauthorized providers, whom regulators normally investigate and prosecute (although that’s changing); and solo and small-firm lawyers, whom they regulate.
Most estimates place the number of solos and small-firm lawyers in the range of 65% to 75% of the legal profession (depending on how you define “small firm”). That means between a quarter and a third of all lawyers do not serve these types of clients.
But every lawyer is licensed and regulated as if they do.
Bar admission programs, licensing exams, ongoing competence expectations, and Codes of Professional Conduct are all premised on the provision of legal services to vulnerable individuals. Practice-based competence requirements and CLE programs offered by regulators invariably assume a solo or small-firm lawyer with vulnerable clients. But what about the 30% of the legal profession that doesn’t answer to these descriptions?
I think it’s time we recognized these facts and accepted their implications. Chief among the implications is this: In effect, we have two legal professions.
One profession:
- serves vulnerable individuals,
- is based almost entirely in law firms with one or a small handful of lawyers,
- has a unique set of business and practice issues, and
- represents most of the risk that regulators are trying to reduce in order to “protect the public.”
The other profession:
- serves sophisticated individuals, companies, and organizations,
- is mostly based in businesses with anywhere from 10 to 1,000 lawyers,
- has a completely different set of business and practice issues, and
- represents relatively little risk from the regulator’s point of view.
None of this, by the way, is to say that lawyers who serve vulnerable clients are less competent than those who serve sophisticated clients. It’s to say that the first set of clients represent an entirely different type of risk than the second. But it also to recognize that solo and small-firm lawyers have fewer resources — time, people, and bandwidth — to manage their clients than other lawyers do, further exacerbating the risk these clients represent.
I think it’s time we stopped thinking of lawyers in terms of counting how many of them you can find in a single workplace — which is a lawyer-centric lens — and started thinking of them in terms of the types of clients they serve and the relative degree of risk associated with serving those clients, which is a client-centric and risk-based lens.
In other words, we should categorize members of the legal profession according to the vulnerability of the client base a lawyer serves and the risk represented by that vulnerability. And if we do that, then we should also think about licensing and regulating lawyers accordingly.
We should think about developing one licensing and regulatory system for lawyers (and other legal professionals) who always or almost always serve “the public” as regulators define it, and another for lawyers and legal professionals who never or rarely do. As it stands, we are effectively over-training, over-licensing, and over-regulating lawyers whose clients are in much less need of “public protection” than others are.
“One size fits all” licensing and regulation makes little sense for an increasingly specialized profession. Maybe it’s time we changed that.
Excellent. The facts explained also serve to understand the legal information publisher and related supplier market, through which, for better or worse, only one of the legal professions matters. The problem is that the other one doesn’t have the needs and resources to make it interesting, in terms of profit.
This is intriguing, and plausible in principle. But I’d like to hear a bit more evidence for the claim that we’re “over-training, over-licensing, and over-regulating” lawyers who serve corporate and/or sophisticated clients. Is the cost of complying with legal services regulation problematic for these firms and/or their clients? Are there many firms that would rather hire people with fewer years of education or different education?
Some of these issues came up in a recent disciplinary decision from the Law Society of British Columbia. Only the Indigenous lawyer on the panel, Karen L. Snowshoe, dissented when a non-Indigenous lawyer received only a 1-month suspension for years of inadequately representing residential school survivors that included hiring a convicted murderer liaison who then extorted their compensation from his clients: Bronstein (Re), 2021 LSBC 19. The result was based on a joint submission by the Law Society and Mr. Bronstein that the majority justified accepting on the grounds that the case might be hard to prove since the victims were reluctant to testify. Ms. Snowshoe commented in her dissent: “If the parties view the Law Society’s current adversarial regulatory process as a barrier to the participation of vulnerable witnesses like the Respondent’s forer clients, then the issue is one of access to justice – a public interest issue, which the Law Society needs to immediately address.”
Noel, thanks for your comment and questions — you raise excellent points, and upon reflection, I think “over-regulated” was not the right term for me to use. It suggests that lawyers and law firms outside of the “vulnerable client” population are unnecessarily burdened by regulation and oversight that they neither need nor benefit from, which I don’t think is the real problem here. Same for “over-licensed” and “over-trained.”
Having given it more consideration, I think that I ought to have instead used terms like “ill-suited,” “mismatched,” “inapt,” or “inappropriate” to describe the application of a licensing and regulatory structure, designed to protect one type of client, to all providers of legal services and to all types of clients. The problem I was trying to zero in on is that traditional lawyer licensing and regulation is a general-issue uniform that simply doesn’t fit many (if not most) lawyers in this complex and highly fragmented profession. We need a better-designed portfolio of options.
A significant challenge in this regard is that as a profession, we don’t know nearly enough about the vulnerabilities faced (and therefore the associated risks created) by our various types of clients. Detailed research into the needs, perspectives, vulnerabilities, and constraints facing individuals and very small businesses has been undertaken only relatively recently (cf. the work of Profs. Rebecca Sandefur in the US and Julie MacFarlane in Canada, among many others). There is more data available about the demands of corporate and institutional clients; but this data tends to focus on finding competitive advantages that can be exploited by law firms angling to serve these clients, rather than on exploring regulatory, ethical and risk-based dimensions of these clients’ needs. I’m not sure anyone is looking into this subject, though I’d be interested to learn.
So what I should have said was that we need to understand more fully the vulnerability spectrums and risk profiles of various type of clients (or client situations), and tailor our lawyer education, licensing, and ongoing competence systems in response. Regulators should seek to continually widen the gap between the risks and the rewards of legal services provision — that strikes me as a fundamental regulatory function. But not all clients are the same, and not all risks are the same. The more we really learn about our clients and their risks, the better we can become at licensing and regulating providers of all kinds to serve those clients with minimum risk and maximum effectiveness.
The other aspect of “One size fits all” licensing and regulation as you put it is the distinction between solicitors work and litigation.
The work you describe for the Fortune 500 GC is overwhelmingly solicitors work. Securities, corporate finance, borrowing, M&A. Not a sniff of dispute resolution.
Licensing and the rules of conduct are (in my experience) written for litigators. When us solicitors try to figure out the conflict rules or the rules around trust money as they relate to solicitors transaction work, we’re frequently jamming a round peg into a square hole. And we’re often doing it in the context of a multi jurisdictional transaction in which we’re working with American or European lawyers with more rules that are better adapted to solicitors practices.
We’ve adapted fine, its what we do, but its frustrating to tell a corporate client 10,000 times our size that we can’t act for them because the rules seem to presume that they’re (i) in litigation with their counterparties and (ii) vulnerable.
I completely agree. I had actually planned to address that point in this post, but it was getting too long. “Litigator in private practice” is the default setting for our professional education, licensing, ethics, and self-image — every other type of legal career is implicitly treated as an aberration from that norm. We are decades past the point where that should have changed.
Provocative article Jordan. You made me recall then Professor Anand’s 2015 paper on the regulation of the larger law firms: Large Law Firms and Capture: Towards a Nuanced Understanding of Self-Regulation (2015) 92 The Canadian Bar Review, 485-505. As I understood her main point it was that the larger firms (your Type 2 firms) have reputational and other risk that encourages them to be more careful than the Law Society could make them. It is worth noting that the number of Benchers from the biggest law firms has declined steadily over the last 30 years.
For me “the public” is homebuyers and sadly, since 1957, the LSO has done as much as it possibly can to protect the real estate Bar at the public’s expense. It has made no difference whether the homebuyer is a Fortune 500 GC or a Fortune 500 security guard.
Thanks, Tim — I’ll check out that article!