The Legal Profession’s Weakening Grip on Law Society Governance

In late April, two groundbreaking decisions concerning legal regulators in Canada were announced — one by a court, and one by a law society.

The first decision came from the British Columbia Supreme Court, which ruled that the provincial government’s proposed overhaul of legal regulation in BC was constitutional and could proceed. I thought this was the obvious outcome from the outset, as I wrote here at Slaw two years ago, and I’m very glad to see the issue resolved — for the moment, anyway.

At the heart of BC’s legislative overhaul (and the lawsuit that challenged its constitutionality) was the BC government’s plan to replace the Law Society of British Columbia (LSBC) with a new body called Legal Professions British Columbia (LPBC), incorporating the Society of Notaries Public of BC in the process. The government won’t win any awards for the way it went about consulting the profession on this change, and there were a number of aspects of both process and content (which I won’t address here) that raised serious concerns for legal system stakeholders.

But the heart of the overhaul, and the crux of the legal profession’s unhappiness with it, was a fundamental reconfiguration of legal regulation governance. The LSBC, like every other law society, is governed almost entirely by lawyers who are elected to board of director positions (“Benchers”) by other members of the profession. LPBC, by contrast, would be governed by a mixed board of appointed and elected directors, a bare majority of whom would be lawyers.

I supported the overhaul because I had formed the opinion that in practical terms, most law societies put the interests of the profession ahead of the public interest, especially when it comes to non-lawyer delivery of legal services. This isn’t because law societies are governed by cackling evildoers; it’s because a professional regulator whose governors are directly elected by and from the profession it’s supposed to regulate is inherently compromised. If you are elected to a position, you have a constituency, and you cannot help but prioritize that constituency and its interests in your work.

But the LSBC, supported by the Trial Lawyers’ Association of BC and the Canadian Bar Association, said the proposed governance structure, which took away the supermajority of elected lawyers on the Board, constituted an unacceptable violation of lawyers’ professional independence. The government said it wasn’t, and in my article two years ago, I agreed. In his decision, so did BCSC Chief Justice Ronald Skolrood. He found much to dislike about the legislation and the government’s process, but he ruled that the proposed governance structure did not violate the Constitution.

This is a very shorthand summary of the story and the decision; you should read the whole ruling (as well as the organized bar’s dismayed reaction) to learn more. The plaintiffs are making noises about an appeal, which I hope they don’t pursue. Among other reasons, I fear that by the time an appeal snakes up through the BCCA and the SCC, legal regulation will have been overwhelmed by other horsemen of the regulatory apocalypse now coming over the hill (more on that below).

Less than 48 hours after Chief Justice Skolrood handed down this decision, the Benchers of the Law Society of Ontario dropped a smaller bombshell of their own. They voted to endorse the recommendations of the LSO’s Governance Review Task Force that Convocation should be significantly reconfigured. The LSO’s reforms don’t go as far as BC’s did, but they’re still very notable:

• The total number of directors is reduced from 53 to 37
• The total number of elected lawyer directors is reduced from 40 to 24
• The total number of public (lay) directors is reduced from 8 to 6
• Three new appointed directors (two of whom are licensees) are added

The upshot is that the percentage of elected lawyer directors drops from 75% to 65%, while the percentage of public directors very slightly increases (from 15% to 16% — I’d have preferred at least 30%, but I’ll take what I can get).

Thankfully, the overall size of the Board was also reduced 30%, marking a welcome change from bloated to merely overstuffed. Thirty-seven directors is still way too many — the State Bar of California’s Board of Trustees has 13 members, covering a jurisdiction with 225,000 lawyers— but it’s an improvement. The changes still have to be approved by the Ontario legislature, but I don’t foresee any difficulties there.

These two developments point towards the same conclusion: The longstanding custom by which Canadian lawyers elected lawyer-heavy boards to govern legal regulators is slowly but surely coming to an end. And that’s good.

To state the obvious: Lawyer independence from state interference is indispensable. Governments should not be able to direct, intimidate, or punish lawyers because of the clients they represent, the positions they take, or the causes they advance. The rule of law — which you might have noticed is under serious pressure these days — counts lawyer independence as one of its foundational pillars.

But elected-lawyer super-majority dominance of legal regulators is neither necessary to achieve that goal nor proportionate, in its impact, to achieve it. Other professions, including those that also take their independence seriously, have come to accept the value of boards that contain both professional and non-professional, and both elected and appointed, members. The LSO report itself describes appointed directors as a way to address structural gaps that elections don’t resolve, including expertise, competencies, and the presence of Indigenous and Francophone perspectives.

But I think there’s an even deeper issue at stake here: the public legitimacy of a self-regulating profession. Legal regulators are entering a period of extraordinary challenge. Generative AI will change everything we believe to be true about who can produce legal work and what legal competence requires. Increasingly ravenous private equity investors are circling law firms with buyout offers many will find hard to refuse. Meanwhile, the access-to-justice crisis is entering at least its fourth decade, and the profession hasn’t come close to offering up a workable solution yet. Governments across the country are watching the profession — some more closely than others.

In this environment, law societies that continue to pursue a super-majority of elected lawyers on their boards risk more than just wasting money and time while more wolves gather around the profession’s door. They also risk the possibility that the general public will perceive these efforts as the actions of a legal profession increasingly focussed on what lawyers want above everything else. If that belief ever becomes widespread and entrenched in the minds of Canadians, then no amount of regulatory governance reform will do much to help us.