Walking a Frayed Tightrope in Lawyer Self-Regulation

If you had asked both a Canadian and an American, in the last several weeks, “What do you think about the mess at the country’s largest legal regulator?”, you would’ve had two separate conversations about two separate messes, which together speak to a single big problem for lawyer self-regulation.

The Canadian would assume you were speaking about the March dismissal of Law Society of Ontario CEO Diana Miles, following the submission of a confidential report to the LSO’s Board of Directors (Convocation) from a retired judge into a significant and unapproved salary hike arranged without the knowledge or approval of the board. Late last week, following numerous outside calls and extensive internal debate, the LSO finally released the judge’s report. Its account of the entire fiasco, summarized in The Globe And Mail, paints an unnerving picture of dysfunction inside Ontario’s legal regulator.

The American would assume you were speaking about the disastrous February rollout of the new California bar exam. The State Bar’s new hybrid exam, intended to reduce costs, was marred by significant technical and administrative problems, including technological failures, proctoring issues, and communication breakdowns. Any of the 4,300 candidates who took and failed the February test will be allowed to retake the exam in July for free — but that’s no consolation to law graduates unable to start working as lawyers.

The best you can say about both these situations is that they involved massive lapses in judgement and/or failures of administrative competence. You could defend the regulators by saying that mistakes happen, even big ones, and what matters is that the regulator admitted to the mistakes and took steps to address and alleviate the situation.

But I doubt those sentiments will be shared widely outside these organizations. In particular, I doubt that the governments in each jurisdiction will be so forgiving.

California’s legal regulator has already been beaten back once by legislative interference, when a state congressman threatened to effectively defund the State Bar unless a single task force looking into the possibility of paraprofessional licensing and a regulatory sandbox was disbanded. And as we’re witnessing every day in the news, it doesn’t take much to incur the wrath of government anywhere in the United States right now.

In Ontario, Doug Ford’s Conservatives recently won a third consecutive majority and now have another five years to pursue their interests. One of those, I’ve heard from time to time, is dissatisfaction with the conduct of legal regulation in Ontario. The CEO salary scandal might well look to the government like an ideal opportunity for intervention.

If the LSO wants to know what a government could do to its legal regulator, it need only look west. The British Columbia government is working to replace the Law Society of BC with a new unified regulator of all legal services providers in the province. A key aspect of this new body will be a significantly reduced percentage of elected lawyers on the board of directors, something that almost all lawyer organizations in the province oppose. A constitutional challenge to the government’s attempt, led by the LSBC and the Trial Lawyers Association of British Columbia, is underway, although we are likely many months away from a final resolution.

But the LSO itself, in a Governance Review Task Force report released last fall, proposed significant reforms to its own governance structure. The key recommendations include reducing the size of Convocation from 54 to approximately 30 members, with 14 elected lawyers, 2 elected paralegals, 10 appointed members (comprising 4 lawyers, 1 paralegal, and 5 non-licensees), and 4 public members appointed by the government. As in BC, lawyer organizations in Ontario oppose these changes. But also as in BC, the trend towards reducing elected-lawyer control of legal regulation is clear.

Lawyers are anxious to ensure that whatever reforms are made, the hallowed principle of “lawyer self-regulation” is held sacrosanct, and that lawyers will continue to control the governance of their own profession and the legal services market generally. In December 2023, I warned legal regulators in both Canada and the US that attempting to hold onto both these privileges could mean they wind up with neither — and that lawyers’ independence from the state could be lost, too. The Trump Administration’s attacks on large law firms vividly illustrate what that nightmarish possibility looks like.

Lawyer self-regulation in North America was already walking a tightrope. Major missteps like those in Ontario and California threaten a catastrophic loss of balance at the worst possible time.