Rhetoric and realities: what independence of the bar requires of lawyer regulation.
As argued in Section III, the criteria for evaluating regulation of lawyers do not lead to any definitive stance on the question of whether lawyers should be self-regulating or on the general structure and approach that a regulatory regime must take. They do, however, provide a basis for critiquing and assessing regulatory approaches that may have a greater or lesser commitment to self-regulation. In this section, after briefly outlining the basic structure of regulation of lawyers in Canada, I consider whether Canadian regulation could be improved in light of the criteria if it were to adopt structural changes similar to those made in England and Wales. I outline the changes to the regulation of legal services in England and Wales, focusing in particular on changes to the regulation of solicitors. I then identify the key differences between the model for regulation of solicitors in England and Wales with the current regulation of lawyers in Canada, assess the advantages and disadvantages of each in light of the regulatory criteria, and propose some modifications to the way regulation is done in Canada. In particular, I recommend that the functions of Canadian law societies be divided, with the creation of a separate dispute-resolution tribunal staffed by paid and appointed lawyer and non-lawyer tribunal members. The tribunal would have the mandate of adjudicating disciplinary matters and also client-service disputes, similar to the function performed in England by the legal ombudsman. The existing law societies would focus on other aspects of their regulatory mandate, including more active regulation of law firms and organizations.
1. The Structure of Regulation of Legal Services in Canada
The primary bodies charged with regulating the conduct of Canadian lawyers are the provincial law societies. While lawyers' relationships with clients and lawyers' obligations to the administration of justice are also affected by private law (such as negligence actions and breach of contract), other regulatory regimes (such as securities regulation), and by the courts' inherent jurisdiction over their own processes, the standards of conduct for lawyers are established and enforced by the provincial law societies. Exercising powers granted by statute, the provincial law societies determine the qualifications and character necessary for admission to the profession, write codes of conduct to be adhered to by lawyers, investigate complaints of lawyer misconduct, and, after hearings, impose sanctions for misconduct.
Although each law society has numerous permanent employees to assist in the discharge of its functions, the law societies are governed by volunteer or near-volunteer (83) "benchers" elected from the law societies' membership. The implementation of a law society's key functions depends on the benchers. The benchers determine the contents of the code of conduct, chair and direct most law-society committees, and adjudicate disciplinary matters. In Alberta, for example, the majority of the members on any disciplinary panel are elected benchers; they are not paid for their time sitting. (84) Most law societies have some appointed lay benchers and will include lay benchers in disciplinary panels; however, the overwhelming majority of benchers are elected lawyers. Some law societies--most notably the Law Society of Upper Canada--also have regulatory authority over other legal service providers, such as paralegals, and also have benchers elected from the ranks of those other service providers. (85) Law societies are funded by levies from their member lawyers.
Some provinces, including British Columbia and Quebec, have some non-lawyer oversight of the activities of the law societies. In British Columbia, the Office of the Ombudsman has the power to receive and address complaints about the law society's handling of regulatory matters and has the power to make recommendations "to resolve an unfairness". (86) In Quebec, there is a distinct regulatory body, the Professions Tribunal, which can review the decisions of the provincial regulator, the Barreau du Quebec. (87) This oversight is limited, however, and does not involve directing its management or policies. (88)
The statutory mandate of each law society is to act in the public interest, although many provincial law societies also have the express statutory authority to act in the interests of the profession. A typical mandate is that given to the Law Society of British Columbia pursuant to section 3 of the 1998 Legal Profession Act:
3 It is the object and duty of the society
(a) to uphold and protect the public interest in the administration of justice by
(i) preserving and protecting the rights and freedoms of all persons,
(ii) ensuring the independence, integrity and honour of its members, and
(iii) establishing standards for the education, professional responsibility and competence of its members and applicants for membership, and
(b) subject to paragraph (a),
(i) to regulate the practice of law, and
(ii) to uphold and protect the interests of its members. (89)
While having this mandate of upholding and protecting the "interests of its members", the Law Society of British Columbia and other provincial law societies do not identify their role as one of advocates for the profession. That representative function is seen as properly allocated to the Canadian Bar Association, a voluntary professional association of Canadian lawyers. Having said that, there is no mandated separation between the two types of organizations; sitting members of Canadian Bar Association committees have run for election as benchers of provincial law societies and the Canadian Bar Association has had an active role in shaping the regulatory approach of the law societies.
2. The Structure of Regulation of Legal Services in England and Wales
This basic description of the regulation of legal services in Canada is much the same as the description that would have been given 10, 15, or 20 years ago. By contrast, in England and Wales the regulation of legal services has been structurally transformed over the last 10 years, a transformation statutorily implemented by the Legal Services Act 2007 (LSA 2007). (90) The most notable aspect of the LSA 2007 is its creation of the Legal Services Board, a regulatory body charged with the power to govern all of the entities that regulate English lawyers and legal service providers, including barristers and solicitors.
The Legal Services Board has broad-ranging authority over "approved regulators" of legal services such as the Solicitors Regulation Authority, the Bar Standards Board, and the legal ombudsman, including the power to govern the standards set and actions taken (or not taken) by those regulators. It has, for example, the power to make rules with respect to the requirements to be met by the approved regulators; (91) the authority to set performance targets for the approved regulators and to take action if the performance targets are not met; (92) and the authority to take action where an "act or omission" of an approved regulator has had an adverse effect on its accomplishment of the regulator's objectives. (93)
The Legal Services Board is itself required to meet a variety of regulatory objectives, which include protecting and promoting the public interest; supporting the constitutional principle of the rule of law; improving access to justice; protecting and promoting the interests of consumers; promoting competition in the provision of legal services; encouraging an independent, strong, diverse, and effective legal profession; and promoting and maintaining adherence to professional principles. (94) Those professional principles are identified as acting with independence and integrity, maintaining proper standards of work, acting in the best interests of the client and with independence in the interests of justice, and maintaining confidentiality. (95) In general, the concern of the Legal Services Board seems to be significantly oriented toward consumer protection. In its 2009/2010 annual report, the Board has a distinct section on "regulating in the interests of consumers" and notes that:
We are committed to understanding and taking into account consumers of legal services in all of our work. We believe that we can only put consumers and the wider public at the heart of legal services regulation if we understand and are able to articulate their needs, views and concerns. We therefore made it a priority in our first year of operation to put mechanisms in place to ensure consistency and challenge in our approach to consumer issues. (96)
In addition to creating the Legal Services Board, the LSA 2007 also requires that all regulatory and professional advocacy (representational) activities by lawyers be separated from each other; in England the two roles have historically been located in the same organization--in the Law Society, for solicitors, and in the General Council of the Bar, for barristers. Now the Law Society and General Council may engage in representational activities, while regulatory activities are restricted to the Solicitors Regulation Authority and the Bar Standards Board. (97)
To fully understand how the LSA 2007 has changed the regulatory landscape in England and Wales and how lawyer regulation in England and Wales now differs from that in Canada, it is useful to consider the structure and process, including recent changes in regulatory approach, at the largest of the approved regulators, the Solicitors Regulation Authority (SRA). The SRA is the successor to the branch of the Law Society that was traditionally responsible for the regulation of professional misconduct by solicitors. It has regulatory authority over the approximately 120,000 solicitors licensed to practise in England and Wales and is, since its creation in 2007, structurally independent from the Law Society. The Law Society continues to have the role of representing the interests of solicitors, much in the way the Canadian Bar Association does in Canada. The SRA is governed by the Board appointed by the Law Society Council but made up of solicitors and lay members who are not themselves on the Law Society Council. (98) At present the majority of the members of the SRA's board are solicitors; however, as of 2013 the majority of the board will be lay members. (99) As noted earlier, the SRA is subject to regulatory oversight and governance by the Legal Services Board with respect to its discharge of its functions. (100)
The SRA sets the standards that govern the conduct of solicitors. The SRA Code of Conduct was published in 2007; however, it was replaced in 2011 with a new code of conduct. The new code is part of a broader shift by the SRA to what it describes as "outcomes-focused regulation", in which, rather than only responding to specific violations by lawyers of their professional obligations, the regulator will attempt to avoid, identify, and remedy circumstances that create a high risk of professional misconduct. As set out in its policy statement:
Under the historic approach resources were largely deployed in reacting to crystallized risks, events which had already happened. In addition, those risks were primarily defined as breaches of rules (non compliance), rather than their effect on desired outcomes. This is a very reactive way of working and the result of that approach in the case of the SRA and many other regulators was an insufficient focus on tight authorisation [admission] processes (to reduce scope for unacceptable risks), and the deployment of disproportionate resources in responding to breaches, some of them very minor, rather than in pre-empting unacceptable risks. (101)
Under the new code of conduct solicitors are given "outcomes" with which they are required to comply, as well as non-mandatory indicative behaviours and notes that direct them as to the sort of behaviours likely to prevent or to lead to violation of their professional obligations. The new code is considerably shorter than the previous code and is intended to give direction to solicitors about what to do, rather than simply providing them with a set of rules to follow or--as it was viewed--to work around.
The new code emphasizes client service while giving less specific attention to the obligation of lawyers to stay within the bounds of legality (although asserting its importance). (102) For example, the 2007 code required that a lawyer cease to act for a client where doing so would involve him in violating the law or his ethical obligations. (103) The 2011 code eliminated that rule, stating instead that solicitors must "provide services to . . . clients in a manner which protects their interests in their matter, subject to the proper administration of justice." (104) The rules that directly restrict lawyer advocacy are limited to circumstances in which solicitors are appearing before a court or similar dispute-resolution body. (105) It may be that the draft code does not intend to amend solicitors' obligations; however, the elimination of the positive obligation to avoid unlawful or unethical conduct suggests a shift in tone and emphasis. This view is suggested as well by the SRA policy statement that "[i]n the future there will be a greater emphasis on seeking to work with firms to ensure positive outcomes for clients, including constructive engagement with firms seeking to put things right where those outcomes have not been achieved". (106) Indeed, throughout the Policy Statement, the SRA references the need to avoid negative impacts on consumers and, when it mentions a counterweight, references only the need to protect the "public interest", the meaning of which is not defined or addressed. (107)
The shift in regulatory style will also have the SRA emphasizing the conduct of firms and organizations delivering legal services rather than only that of individual lawyers. All law partnerships will have to be recognized by the SRA to provide legal services. (108)
That is not to suggest that regulation of the conduct of individual lawyers will be abandoned. In particular, in circumstances in which it appears that a lawyer has violated his or her obligations under the new code of conduct, the SRA will continue to investigate, prepare, and prosecute cases before the Solicitors Disciplinary Tribunal, a distinct and independent statutory tribunal charged with making decisions about whether a lawyer has engaged in professional misconduct and appropriate sanctions. (109) The Solicitors Disciplinary Tribunal hears cases in which it is alleged by the SRA (110) that professional misconduct has occurred. Cases are heard in public, absent exceptional circumstances, by a panel of three members, two of whom are solicitors and one of whom is a lay member. (111) The process is quasi-judicial in nature. (112) The master of the rolls (a judge of the Court of Appeal) appoints the members of the panel, all of whom are remunerated for their time in sitting, the lawyers at the rate of 575[pounds sterling] per day and the lay member at the rate of 265[pounds sterling] per day. (113) Solicitors who are members of the Tribunal must have been solicitors for at least 10 years and "may not be members of the Council of the Law Society or have any connection with the Solicitors Regulation Authority." (114) The Disciplinary Tribunal has broad powers, including the power to strike off, suspend, or fine a solicitor. (115)
3. Comparing the Regulatory Regimes
Based on this review, there are some identifiable similarities between regulation of lawyers in England and Wales and in Canada. When stated at the general level, the principles underpinning the regulation seem to be the same and include fostering the rule of law, the administration of justice, and effective advocacy for clients. Lawyers are still involved in regulatory activities and fund the regulatory structure themselves. In both jurisdictions the regulatory structure is not subject to direct executive or legislative control.
There are, however, some significant differences that have emerged between the jurisdictions. Most obviously, the regulatory bodies governing lawyers in England and Wales are subject to oversight by the Legal Services Board, a regulatory body that is not managed and run by lawyers. While in Quebec and British Columbia there is some non-lawyer oversight of the self-regulatory bodies, in most jurisdictions the law societies are subject only to oversight through the process of judicial review of administrative action or legislative amendment.
Second, the lawyers and non-lawyers running the SRA are appointed rather than elected (although they are appointed by elected members of the Law Society), and after 2013 there will be more non-lawyers than lawyers appointed. In Canada the governing bodies of the law societies are elected and are overwhelmingly made up of lawyers.
Third, the adjudication and sanctioning of professional misconduct cases with respect to solicitors in England and Wales is performed by a distinct regulatory body whose members are well paid and appointed by a judge of the Court of Appeal. (116) In Canada, disciplinary cases are heard by the law societies in panels made up of elected benchers who, in most provinces, are not paid for their time.
Fourth, while the general professional obligations owed by solicitors appear to match those owed by Canadian lawyers, the new code of conduct in England and Wales significantly emphasizes client service over obligations the solicitor may have to the functioning of the legal system. This is in keeping with a general orientation of the new regulatory system toward consumer interests, as indicated by the statements by the Legal Services Board in its Annual Report, the Policy Statement of the SRA, and the creation of the legal ombudsman, discussed in the previous section. While there have been numerous regulatory changes in Canada, the overall emphasis has remained on the totality of the lawyer's ethical obligations, and no special attention has been given to consumer concerns. The regulatory model is not generally consumer oriented in that way.
Fifth, the regulation of lawyers in England is shifting, at least with respect to solicitors, to an outcome-focused model, with emphasis on regulation of firms rather than individual lawyers. No Canadian law society has adopted a similar outcome-focused approach, and regulation of firms in Canada is limited.
4. Evaluating the Regulatory Regimes
When assessed against the normative criteria for evaluating regulation, how do changes of the type instituted in England and Wales fare relative to the traditional Canadian structure ? Is there reason to think that adopting them here would improve the ability of Canadian regulation of legal services to achieve the regulatory criteria?
Based on traditional concerns about independence of the bar, one would expect that the changes made in England and Wales would have led to the risk of (or actual) interference with the ability of lawyers to represent clients and to act for those clients against state power. One would expect, in other words, that the changes would violate the first two criteria for assessing regulation--that it not discourage lawyers from acting as zealous advocates for their clients, and that it actually encourage them to do so. As stated by the 2005 President of the Law Society of British Columbia, Ralston Alexander, when he noted with concern the pending changes in England and Wales:
Canadians today have privacy and security over their legal matters and they trust that lawyers will keep their confidences. They also trust their lawyers to represent them fully, without improper influences or pressures coming to bear, even if they may be up against a branch of government. But without lawyers who are independent of the state, such confidence would no longer be justified. And without an independent law society, there are no independent lawyers. So the question needs to be asked. How far can government intrude into the profession before that independence is lost? (117)
Yet, when reviewing the changes in England and Wales, it is very difficult to see any evidence of this risk materializing. Indeed, it appears instead that the result of the changes has been to make the regulatory orientation strongly focused on better serving client needs, with "better" defined in terms of the client's ability to accomplish the goals the lawyer was helping with. The changes in England and Wales can be described as putting zealous advocacy first, rather than undermining it. Furthermore, there is no indication in any of the regulatory changes of attempts to suppress lawyer advocacy when directed against the state, or of attempts to undermine the protection given to lawyer-client confidentiality.
That is not to say, however, that the changes in regulatory structure in England and Wales have had a wholly positive effect given the evaluative criteria for regulation. While the changes appear likely to encourage zealous advocacy, they also appear to do so at least in part at the expense of lawyers' other central ethical obligation: remaining within the bounds of legality. It is true that the regulatory documents repeatedly mention the public interest and the importance of the administration of justice, but that recognition does not lead to strong articulation of the ethical obligations that follow from those principles. Rather, the strong articulation of what lawyers should do is with respect to client service and the need for lawyers to provide efficient and effective assistance to their clients. This is most notable in the proposed change to the solicitors' draft code of conduct with respect to relationships with clients. It may be that abandoning the prohibition on representing clients where the representation requires the lawyer to act unlawfully or unethically could be rationalized on the basis that the prohibition asserts an improperly negative view of clients as driving lawyers away from what the law requires. Unfortunately, however, that negative view of clients is sometimes accurate. One of the things that lawyers need to be able to do, particularly when representing clients, is to tell them what the law requires. Not every client is weaker than the lawyer, and the lawyer needs tools--including in the statement of her ethical obligations--to encourage and empower her to resist clients who are more interested in getting what they want than in what the law provides. The constant consumer emphasis in the regulatory structure of England and Wales may undermine its ability to provide these tools, because it does not clearly and expressly articulate the lawyer's obligation with respect to staying within the bounds of the law, creating implicit and explicit pressure on lawyers to focus solely on satisfaction of client interests. This is inconsistent with two of the normative principles that regulation must achieve: ensuring that lawyers stay within the bounds of legality in representing clients and reducing pressure on lawyers to exceed those boundaries.
This point should not be overstated. This current emphasis on the consumer does not necessarily reflect how the regulatory changes will unfold in England and Wales over the next several years. Furthermore, there are other pieces of the regulatory shift in England and Wales that may enhance the ability of regulators there to meet the regulatory criteria, especially considering that the substance of those criteria is recognized in general terms by the statutes and other regulatory documents. Or, at a minimum, there are regulatory changes that have been made that are not inextricably linked with a consumer-centric orientation. These other changes include the use of paid and appointed tribunal members to hear disciplinary cases, the extensive involvement of non-lawyers in establishing the regulatory agenda, the oversight powers of the Legal Services Board, and regulation of law firms and outcome-based regulation.
With respect to the use of a distinct regulatory tribunal with paid staff to hear disciplinary cases, this seems to create a number of desirable incentives relative to accomplishment of the regulatory criteria. In particular, ensuring that lawyers are encouraged to fulfill their ethical obligations does require that the powers exercised by the regulatory authority be real and that the regulatory authority be willing to take on cases whenever necessary, regardless of their complexity. As repeatedly documented by Harry Arthurs, it is not at all clear that Canadian legal regulators have been willing to do this, focusing their energies instead on cases that are relatively easy to prove against lawyers who are relatively less likely to resist regulatory authority. (118) That fact is not surprising. The main actors at the law societies are volunteers or near-volunteers. While the amount of time they are willing to give is remarkable, there is a maximum capacity that any volunteer-run organization will reach, and a likely lower willingness to take on factually or legally complicated cases, particularly when there are highly resourced lawyers on the other side. They are also less likely to be able to respond quickly to regulatory changes elsewhere or to innovate in their regulatory approaches, since often benchers will only have a limited number of years of regulatory experience. This means that Canadian regulators are simply less likely to be able to achieve any regulatory objective and are less likely to be able to achieve regulatory objectives such as those I have identified here for regulation of the legal profession, which can conflict and will often require consideration of difficult factual circumstances. Would any Canadian legal regulator be able to effectively address the complicated facts and legal issues raised by the famous US legal ethics scandals such as the role of lawyers in undermining regulators during the 1980s savings-and-loan crisis, the role of lawyers in enabling Enron's deception of its shareholders, or the advice given by lawyers at the Office of the Legal Counsel to facilitate torture during the second Bush administration? It seems very unlikely.
This effect may be exacerbated when you add in the fact that this volunteer corps is also elected, and that the people electing them are lawyers, not the public. Complicated cases may be ones where the interests of the public and the interests of the profession do not align; there is little incentive for an elected regulator to take on cases or causes where the statutory obligation in serving the public interest may only be achievable at the expense of the happiness of one's electorate. It is more rational, and therefore more to be expected, that elected benchers will focus on matters that will permit them to satisfy their constituency as well as the public interest--that is, on cases where the lawyer's ethical failure is morally unambiguous or the lawyer is professionally marginalized--such that other members of the profession will perceive no threat, and an obvious upside, in disciplining that lawyer.
With respect to the involvement of non-lawyers in governing the profession, if a non-lawyer is distinguished from a "client," this change may also be capable of improving the accomplishment of the regulatory criteria, although it is not certain to do so. Ultimately, the accomplishment of the regulatory criteria depends on the commitment and energy of the regulatory body with respect to the achievement of the regulatory criteria in substance. There is no overarching reason to believe that lawyers or non-lawyers are more likely to be committed to those criteria. The key point--and this perhaps underlies some of the concerns of those writing about independence of the bar, both favourably and unfavourably--is that both lawyers and non-lawyers must have some independence from over-identification with any one aspect of those regulatory criteria. If the non-lawyers involved in regulating the legal profession are all clients focused on ensuring that lawyers think most about them, then one can plausibly argue that the resulting regulation is likely to de-emphasize regulatory initiatives designed to encourage lawyers to stay within the bounds of legality. On the other hand, if the non-lawyers involved in regulating the legal profession are all legislators, government officials, or judges, one can just as plausibly argue that the resulting regulation is likely to de-emphasize lawyers' roles as zealous advocates, particularly in "unpopular" cases. The advantage of involving lawyers is that they are likely to identify with both aspects of their professional role. (119) Codes of conduct and public statements by lawyers generally acknowledge both aspects of what lawyers are to achieve, and my own involvement in the regulatory activities of the profession suggests a strong and consistent recognition of both aspects of the lawyer's professional obligations. Ultimately, I would argue that there is no particular virtue or vice in having non-lawyers or lawyers involved in the regulatory process; the key point is that whoever is involved should be committed to all of its objectives, without undue emphasis on one over the other. That suggests, perhaps, the desirability of both lawyers and non-lawyers being involved, with emphasis on avoiding "constituency"-type governance structures.
With respect to the oversight powers granted to the Legal Services Board, the significant advantages appear to be ensuring additional checks and balances that will orient the approved regulators such as the SRA toward the accomplishment of the regulatory criteria. If you have regulatory objectives that are not directionally consistent, as is the case in regulation of legal services, it seems sensible to think that some sharing of institutional responsibility for the accomplishment of those objectives could be helpful. If one regulator pushes too far in one direction, the other regulatory body can push back in the other. This is not certain to happen, however, since different regulatory bodies may share emphasis on particular aspects of the regulatory agenda at any time. Furthermore, it is not apparent that those checks and balances necessarily require a body with the breadth of power and regulatory scope of the Legal Services Board, particularly if operating within the far smaller legal-services markets represented by each of the Canadian provinces. It seems that bodies similar to that currently used in Quebec, which provides some general oversight and counterweight to the power of the law societies, might well achieve that aspect of the Legal Services Board, while not imposing the same costs and cumbersome bureaucratic structure.
Finally, there is the shift to regulating law firms and to outcome-focused regulation. Regulating law firms can be justified on a variety of levels, (120) although doing so effectively in Canada requires the adoption of a more professional regulatory structure. Organizational regulation is both complicated and expensive, and law firms are far better positioned to resist regulatory action than are individuals. It seems unlikely that effective law-firm regulation can occur given the current regulatory structure in Canada.
The merits of outcome-focused regulation are more uncertain. While it seems theoretically desirable to focus on avoiding serious harm by reducing the likely circumstances in which harm will occur, doing so in practice requires serious empirical evidence about what circumstances will, in fact, lead to harm. That evidence was not apparent in the regulatory materials I reviewed, and there seemed to be no real indication as to how acceptable and unacceptable risks of harm would or could be distinguished. It may be that the shift to outcome-focused regulation succeeds; however, at this point it is a regulatory experiment with little detail or clarity, about which no safe conclusions can be drawn. Given that, it seems unlikely to be a desirable change to be implemented here, although it may be that discrete aspects of the regulatory approach could be considered, particularly with respect to law firms. Once the SRA does articulate what it considers to be high-risk circumstances in law-firm structure or management, that information may be useful to Canadian law societies regulating law firms or organizations.
When reviewed as a whole, the regulatory changes in England and Wales provide some interesting ideas and a counter-example through which to consider the adequacy of the current approach to regulating lawyers in Canada. In particular, they suggest that Canadian regulation of lawyers could be improved and made better able to ensure that lawyers act as zealous advocates within the bounds of legality by adopting some specific changes, modelled on changes in England and Wales but modified to reflect the circumstances of regulation here. These include:
1. Separating the dispute-resolution function of the law societies into a distinct regulatory entity. That entity would be charged with adjudicating disciplinary cases (121) and mediating disputes with clients, much as the legal ombudsman does in England and Wales. The tribunal members would be paid and appointed by a joint committee of the chiefjustices of the provincial court of appeal and trial courts and the elected and lay benchers of the law society. They would be independent from the provincial legislature and appointed for a minimum three-year period. This appointment process would be designed to ensure that there was some breadth of representation, but also that the appointees were not focused only on one constituency or were lacking in independence (since judges are also independent of the state). While most dispute-resolution cases would be prosecuted by the law society, private prosecutions and client-service complaints could be brought forward directly by clients or other affected parties. Most client-service complaints would be brought forward by clients, not by the law society, although the law society would have the option of supporting a client in a case where it thought it appropriate to do so.
2. Retaining the current governance structure of the law societies and their power to determine admissions, (122) set standards of conduct, hear and investigate complaints, and determine which matters should be prosecuted at the dispute-resolution tribunal. The law societies would also have to review competence matters to determine whether they should be brought to the dispute-resolution tribunal, although most competence cases would be brought to the dispute resolution tribunal directly by the complainant. The law societies would also be given an express statutory mandate to undertake law-firm regulation. If they were unable to do so, then additional structural changes would have to be introduced.
3. Introducing a distinct legal regulatory-review office in each province. The regulatory-review office would be governed equally by lawyers and non-lawyers, and it would have the power to make recommendations to the provincial law society when it believed that the law society had failed to discharge its legislative mandate fairly and properly. The regulatory-review office would not have the power to direct the law society to reach a specific conclusion on matters of policy or in specific cases.
These changes are relatively modest and incremental. They largely involve a re-allocation of functions from the law society to a distinct body that would be able to focus on dispute resolution, both in disciplinary matters and with respect to service to clients. They retain a strong commitment to independence of the bar as traditionally understood, with structural independence from the executive and legislative branches of government. It is hoped, however, that these changes would provide a greater capacity in legal regulators to decide difficult cases and to foster the accomplishment of all of lawyers' ethical obligations, without being limited to consideration only of obvious violations by marginalized members of the profession. The intention would be to broaden consideration of client concerns and failures of lawyers to be sufficiently zealous, while maintaining emphasis on the need to ensure that, in all cases, the lawyer's representation remains within the bounds of legality.
C. Access to Justice
In setting out the criteria for evaluating regulation of legal services, I included the requirement that access to lawyers be sufficient to permit the law to function as a scheme of social co-operation. Not everyone needs to have a lawyer and not every occasion of intersection with the legal system requires one. However, if access to lawyers is sufficiently compromised, then the force applied to people intersecting with the legal system risks becoming force simpliciter rather than force legitimately authorized. The regulatory criteria discussed and evaluated in the previous sections largely presume the satisfaction of this requirement. It is only when clients have lawyers that the question of whether those lawyers have been subject to proper incentives to ensure they are zealous advocates within the bounds of legality has any relevance. The question of access to justice is raised implicitly, but deeply, in all of the preceding discussion. In this section, that question is addressed explicitly: does the regulation of Canadian lawyers provide appropriate incentives to ensure not only that those lawyers act properly, but also that they are available to the clients who need them?
There is reason to be concerned that in Canada, access to lawyers has reached a crisis point, where the rule of law may be compromised. In a March 2011 Public Commission Report on the Status of Legal Aid in British Columbia, the commissioner concluded that the significant cuts to legal aid in that province mean that "we are failing the most disadvantaged members of our community." (123) He stated that the gap between legal needs and legal services in the province "has grown into a wide chasm resulting in human suffering and related social and economic costs borne by our community." (124) The commissioner detailed the extensive testimony evidencing the absence of sufficient legal services in some criminal cases, mental-health proceedings, immigration matters, family-law matters, and poverty-law matters. With respect to mental-health proceedings, the commissioner noted:
[O]ver 400 individuals who are involuntarily detained in provincial mental health facilities have been denied legal assistance and representation in statutorily guaranteed proceedings to review their detention. . . . These mental health patients are left in the unenviable situation of choosing between proceeding without representation or extending their period of involuntary detention. In many cases, the detained patients elect not to proceed when assistance is unavailable or ask for an adjournment part way through hearings in which they are unrepresented. It almost goes without saying that this is a profound violation of the rights of one of the most vulnerable segments of our community. . . . (125)
Other observers have documented similar problems with access to justice. According to the federal Department of Justice, 13 per cent of criminal accused appear in court without a lawyer. Not surprisingly, although disturbingly, those without legal aid are less likely to be acquitted. (126) The Report of the Ontario Civil Legal Needs Project in May 2010 stated:
Low and middle-income Ontarians experience many barriers to access to civil justice, including the real and perceived cost of legal services, lack of access to legal aid and lack of access to information and self-help resources. Once again, the poorest and most vulnerable Ontarians experience the greatest barriers. (127)
Various studies indicate that the number of litigants who are unrepresented by counsel is growing, particularly in family-law matters. (128)
To what extent can the regulation of legal services be blamed for this state of affairs? A great deal, I suggest. As noted in Section III, regulation encompasses a broad variety of public activities and includes any intentional state effort to alter activity or behaviour, including the facilitation of behaviour. It thus includes regulation of lawyers by the law societies but also governmental legal-aid programs and judicial decisions about the constitutional scope of the right to counsel. Each of these regulatory activities has contributed to the access-to-justice crisis in different ways. In particular, the inevitable gap between legal needs and legal services has been significantly widened by a combination of inadequate funding of legal aid, insufficient attention by law societies and other regulators to failures in the market for legal services, and judicial refusal to recognize a constitutional right to counsel except in a narrow set of circumstances. (129)
The cuts to legal aid in British Columbia are documented by the Public Commissioner's report, which notes that in 2002 legal aid was cut by 40 per cent over a three-year period. Similar cuts have occurred in other provinces. (130) Between 1996 and 2006, legal-aid funding per capita in Ontario was cut by almost 10 per cent, while during the same period spending on health care and on education increased by 33 per cent and 20 per cent respectively. (131) Cuts to legal aid appear politically neutral; in Ontario political parties across the spectrum were willing to cut this area of public service and faced relatively little public opposition for doing so. (132) The provinces appear to be trying to do more with less money, shifting service-delivery models toward legal clinics, limited-purpose retainers, and the use of non-lawyers to advise individuals in legal difficulty. Based on the Public Commissioner's Report, however, this has not entirely ameliorated the problems caused by the cuts to legal-aid funding. Furthermore, to the extent that legal-aid funding has remained constant, increasing expenses associated with criminal-defence work have ensured cuts to the provision of civil legal services, as also documented by the British Columbia Public Commissioner.
Legal aid addresses the gap between legal needs and legal services directly by providing financial assistance to poor or indigent clients. The inability to access lawyers exists more generally across society, however, in part because of imperfections in the legal-services market.133 Regulatory action by law societies to decrease imperfections in the market for legal services could indirectly reduce the gap between legal needs and legal services. The imperfections in the market for legal services relate most significantly to the non-homogeneity of many legal services and legal-service providers and the asymmetry of information between lawyers and clients. They have not been meaningfully addressed in regulation by law societies, perhaps because of the structural weaknesses discussed in the previous section. Certainly law societies could have taken regulatory action to ameliorate those imperfections. They could, for example, have engaged in more serious exercises in standard-setting for service provision, (134) played a more active role in regulating lawyer billing practices and information provision, (135) and taken steps to regulate activities by law firms. (136) Standard-setting and regulation of billing practices provide consumers with a greater ability to choose between lawyers and increase the likelihood of effective price competition between lawyers; they are thus likely to reduce the cost of legal services to consumers. Yet in general, law societies have focused the vast majority of their attention on professional-misconduct regulation, with particular focus on lawyer trust violations. (137) As summarized by Michael Trebilcock:
The legal profession must move aggressively in a similar direction [toward setting standards of professional competence]. After all, consumers of legal services are not interested in the quality of service inputs per se, but only the quality of service outputs. This, for most consumers, is properly their bottom line (as in other product and service markets). In short, a more targeted, bottom line, output-orientated regulatory focus is needed, because that is what a consumer welfare perspective demands, particularly in segments of the legal services market that are particularly afflicted by information asymmetries. (138)
With respect to the constitutional right to counsel, in speeches dating back to 2007, Chief Justice Beverley McLachlin of the Supreme Court of Canada has raised concerns with access to justice, noting that justice too often ends up being available only to the very wealthy, corporations, and those charged with criminal offences, with most legal needs going unmet. (139) She has suggested that lawyers have a professional obligation to meet this need. Yet at the same time, in 2007 the Supreme Court of Canada rejected outright the notion of a general constitutional right to access to justice that would prevent the state from taking steps that might inhibit the availability of legal services. In Christie v British Columbia (Attorney General), (140) Dugald Christie challenged the constitutionality of a tax on legal services imposed by the government of British Columbia. The tax required that clients pay a seven per cent charge on purchase price for legal services (141) and required lawyers to remit the tax to the government, whether or not the client had paid the lawyer's bill. Christie was a poverty lawyer in Vancouver's Downtown Eastside. Between 1990 and 1999, his yearly income was never more than $30,000 and he represented a largely indigent population, many of whom would not, or could not, pay the bills for his services. (142) The net effect of this was, not surprisingly, that Christie owed taxes that his clients did not pay and that he could not pay, and his legal practice became insolvent. (143) Supported by the Canadian Bar Association, Christie challenged the constitutionality of the government's scheme, arguing that there was a constitutional right to access to counsel when a litigant's rights were at issue before a court or tribunal, with which this legislation unconstitutionally interfered.
In a brief unattributed judgment by a unanimous panel, the Supreme Court dismissed Christie's case. It began by characterizing Christie's position in an extreme form, suggesting that the "logical result [of Christie's position] would be a constitutionally mandated legal aid scheme for virtually all legal proceedings, except where the state could show this is not necessary for effective access to justice." (144) It suggested that the financial implications of granting such a right would "impose a not inconsiderable burden on taxpayers." (145) The Court then held that the constitution did not grant such a right in general terms, although it might in specific circumstances. The existing Supreme Court case law did not support the position that any restriction on access would be unconstitutional. (146) Jurisprudence on the rule of law was unhelpful as well, because while it showed the importance of lawyers in ensuring the rule of law, "general access to legal services is not a currently recognized aspect of the rule of law." (147) Any right to counsel created from the existing case law is specific, not general. (148) Finally, the Court suggested that since many factors might impair the ability of an individual to access counsel, there was reason to doubt the evidentiary sufficiency of linking the British Columbia tax to the ability of people to retain a lawyer. (149)
The flaws with the Court's judgment in Christie are significant. In constitutional terms, courts have always been able to distinguish between interference with rights and state failure to facilitate the exercise of a right. In most cases, a failure to facilitate, even of a fundamental right such as equality or liberty, is not characterized by the court as constitutionally problematic. Here, the factual issue raised by Christie was with a state interference with the ability to obtain counsel; the issue of whether the state was equally required to facilitate obtaining counsel is distinct, was not raised on the facts of the case, and would have been distinguished by the Court were it to arise.
The principles of law and of logic do not require that the recognition of the problems with restriction lead inexorably to recognition of the need for facilitation. In addition, it seems logically flawed for the Court to recognize on the one hand the role of counsel in facilitating the rule of law yet to suggest on the other that there is no constitutional problem with interfering with the ability to obtain counsel. What if the BC tax had required that everyone pay $20,000 whenever they wanted to obtain a lawyer, provided the matter did not involve fundamental civil rights ? The Christie judgment suggests that no constitutional problem would be raised by that tax, although I am not sure that the court would see it that way. Finally, the Court's point on evidentiary sufficiency seems difficult to support. Whatever might happen in general cases, Christie went from practising law for indigent clients to not practising law for such clients, solely because of the impact of the tax. The number of lawyers who are willing to take on a life like Christie's, earning a fraction of their potential income in order to help the poor, is miniscule; the elimination of the ability of one of them to practise seems self-evidently to demonstrate the interference. Certainly, the Court has needed far less evidence in other cases to make similar factual determinations. (150)
For our purposes, though, the logical inadequacies of Christie are less important than its effect on the regulatory environment with respect to legal services. The judgment means that governments experience minimal judicial pressure to fund the provision of legal services or against interference with the availability of those services, except in specific cases that impugn significant constitutional rights. Cutting the availability of counsel in familylaw matters, poverty-law matters, immigration matters, or in other civil contexts has no general constitutional consequences, and making it even more difficult to access counsel in those cases through the imposition of a tax is permitted by the court.
If this analysis is correct, and the gap between legal needs and legal services is created in part by the method of regulating legal services, then it is also the case that shifts to that regulatory structure can shrink the gap as well.
This includes, obviously, restoring legal-aid funding to previous levels, but also directing regulatory attention toward improving the efficiency of the market for legal services by, as noted earlier, properly regulating billing, providing greater information to clients, and helping to standardize lawyer services. The revised structure outlined in the prior sections of this paper could help create regulatory resources in the law societies sufficient to permit this to happen. The shifts should also include--although this seems unlikely (151)--a greater commitment by the Supreme Court of Canada to recognizing the role of access to counsel in ensuring the rule of law.
Lawyers do not facilitate the rule of law in the abstract. Ensuring that people can live their lives within the compromise of legality, complying with the law and accessing its entitlements, requires that they have access to lawyers when they need them. Those lawyers must be properly incented to be zealous advocates and to ensure respect for the law. But those incentives have no meaning unless lawyers have clients. Put bluntly, lawyers facilitate the rule of law when representing clients from across society as a whole, not when they represent only the affluent few who can afford them or the unlucky indigent who end up on the wrong side of the criminal-justice system. If clients across the social spectrum cannot access lawyers, then the rule of law is impaired. Indeed, it is arguably at this level, rather than in individual cases in which lawyers are excessively or insufficiently zealous, that the mischief to maintaining the rule of law is done.
Independence of the bar matters. It does not matter as a generic statement that the state should leave lawyers alone. It does not suggest that self-regulation is an untouchable constitutional imperative. It is not itself a normative principle necessary for the accomplishment of law's purposes. But understood through its normative foundations in the role of lawyers in a system of laws, independence of the bar generates important regulatory principles by which the regulation of legal services can be assessed. This paper has touched on a few examples of the regulation of legal services in Canada, suggesting the need for greater regulation of lawyer competence, a more sophisticated regulatory system for regulating the provision of legal services, and a more significant state and regulatory commitment to facilitating access to justice. At any point in the regulation of lawyers and legal services, however, these questions should be considered: does the regulatory measure ensure that lawyers act as zealous advocates within the bounds of legality and that access to justice is protected?
(1) Canada (Attorney General) v Law Society of British Columbia,  2 SCR 307 at 335, 137 DLR (3d) 1 [Law Society of British Columbia].
(2) Pearlman v Manitoba Law Society Judicial Committee,  2 SCR 869 at 887, 84 DLR (4th) 105, quoting from Ontario, Professional Organizations Committee, Report of the Professional Organizations Committee (Toronto: Ministry of the Attorney General, 1980).
(3) Patrick J Monahan, "The Independence of the Bar as a Constitutional Principle in Canada" in In the Public Interest: The Report and Research Papers of the Law Society of Upper Canada's Task Force on the Rule of Law and the Independence of the Bar (Toronto: Law Society of Upper Canada, Irwin Law, 2007) 117 [In the Public Interest].
(4) In Quebec the Barreau du Quebec is under the jurisdiction and governance of the Professions Office.
(5) Gordon Turriff, "Self-Governance as a Necessary Condition of Constitutionally Mandated Lawyer Independence in British Columbia" (speech delivered at the Conference of Regulatory Offices, Perth, Australia, 17 September 2009), (Vancouver: Law Society of British Columbia, 2009) at 4.
(6) Ibid at 10 [emphasis in original]. See also "Protecting the Public through an Independent Bar: The Rights Guaranteed to All Canadians Are Dependent upon an Independent Bar" in Final Report to Convocation, November23,2006: Task Force on the Rule of Law and the Independence ofthe Bar (Toronto: Law Society of Upper Canada, 2006) [Final Report to Convocation]; Herman J Russomanno, "An Independent Bar and Judiciary: As American as Baseball and Apple Pie" (2001) 75:5 Fla BJ 4 (Lexis).
(7) See e.g. Randal Graham, Legal Ethics: Theories, Cases, and Professional Regulation, 2d ed (Toronto: Emond Montgomery Publications, 2011) at 435.
(8) Philip Girard, "The Independence of the Bar in Historical Perspective: Comforting Myths, Troubling Realities" in In the Public Interest, supra note 3, 45 at 75-79: "[A] study of the ideals and aspirations of the Bar in the early decades of the twentieth century suggests a climate in which bar leaders defined the proper province of the legal profession as the defence of the state, business interests, and the status quo" (at 77).
(9) David Wilkins, "Who Should Regulate Lawyers ?" (1992) 105:4 Harv L Rev 801 at 865. See also W Wesley Pue, "Death Squads and 'Directions over Lunch': A Comparative Review of the Independence of the Bar" in In the Public Interest, supra note 3 at 84; Final Report to Convocation, supra note 6. The Law Society Task Force Report notes that the forces from which lawyers need to be independent also include freedom from other regulators and the courts.
(10) See HW Arthurs, "The Dead Parrot: Does Professional Self-Regulation Exhibit Vital Signs?" (1995), 33:4 Alta L Rev 800 at 801 [Arthurs, "The Dead Parrot"]; Wilkins, ibid at 854; Duncan Webb, "Are Lawyers Regulatable ?" (2008) 45:5 Alta L Rev 233 at 244; Richard F Devlin & Porter Heffernan, "The End(s) ofSelf-Regulation?" (2008) 45:5 Alta L Rev 169 at 192.
(11) Robert W Gordon, "The Independence of Lawyers" (1988) 68:1 BUL Rev 1 at 38.
(12) Turriff, supra note 5 at 4.
(14) Final Report to Convocation, supra note 6 at 11.
(15) Ibid at 11.
(16) See Gerald J Postema, "Moral Responsibility and Professional Ethics" (1980) 55:1 NYU L Rev 63; Alice Woolley, "Integrity in Zealousness: Comparing the Standard Conceptions of the Canadian and American Lawyer" (1996) 9:1 Can JL & Jur 61.
(17) Perhaps in a Dworkinian sense, in which the lawyer, like Dworkin's judge Hercules, tries to "decide hard cases by trying to find, in some coherent set of principles about people's rights and duties, the best constructive interpretation of the political structure and legal doctrine of their community." Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986) at 255.
(18) The Supreme Court's jurisprudence on these matters is discussed cogently by Patrick Monahan, supra note 3 at 121-33.
(19) See e.g. Law Society of British Columbia, supra note 1.
(20) Gordon, supra note 11.
(21) Ibid at 7.
(22) Ibid at 20.
(23) Ibid at 30.
(24) Ibid at 20, n 59. My summary draws on Luban's later work, in particular Legal Ethics and Human Dignity (New York: Cambridge University Press, 2007).
(25) Unless technical meaning will generate the most justice, a possibility that Simon expressly contemplates. See generally William H Simon, "Ethical Discretion in Lawyering" (1988) 101:6 Harv L Rev 1083.
(26) Gordon, supra note 11 at 20 [emphasis in original].
(27) Ibid at 38.
(28) Ibid at 81.
(29) Ibid at 83.
(30) Supra note 9.
(31) Ibid at 860.
(32) Ibid at 862.
(33) See Alice Woolley, Understanding Lawyers' Ethics in Canada (Toronto: LexisNexis, 2011) at 22-23 [Woolley, Understanding Lawyers' Ethics]; Graham, supra note 7 at 47-53; David M Tanovich, "Law's Ambition and the Reconstruction of Role Morality in Canada" (2005) 28:2 Dal LJ 267 at 271; Allan C Hutchinson, "Calgary and Everything After: A Postmodern Re-Vision of Lawyering" (1995) 33:4 Alta L Rev 768 at 770.
(34) Trevor CW Farrow, "Sustainable Professionalism" (2008) 46:1 Osgoode Hall LJ 51 at 63. Farrow rejects the normative validity of the dominant conception.
(36) The stipulation of "sometimes" follows from three points. First, a lawyer never has an obligation to take on a particular client or case. Second, a lawyer may attempt to dissuade a client from doing something the lawyer believes to be immoral. Third, in some circumstances a lawyer may be permitted to withdraw from a representation. If, however, a lawyer has taken on a case, the client is not dissuaded, and the client's goals are permitted by law, then the lawyer's obligation is to assist the client to achieve those goals, regardless of their immorality.
(37) The arguments I make here are set out in more detail in Understanding Lawyers' Ethics in Canada, supra note 33, ch 2. See also Tim Dare, The Counsel of Rogues? A Defence of the Standard Conception of the Lawyer's Role (Burlington, VT: Ashgate Publishing Company, 2009); W Bradley Wendel, Lawyers and Fidelity to Law (Princeton, NJ: Princeton University Press, 2010).
(38) Joseph Raz, The Authority of Law, 2d ed (Oxford: Oxford University Press, 2009) at 51. See also HLA Hart, The Concept of Law, 2d ed (Oxford: Oxford University Press, 1994) at 87, where he describes law as a system of rules "necessary to the maintenance of social life or some highly prized feature of it."
(39) I am assuming here a market as considered apart from the law, rather than considering the law as constituting the market in some contexts, i.e., that the law affects the market, but does not constitute it.
(40) Dare, supra note 37 at 57.
(41) Ibid at 72.
(42) See Woolley, Understanding Lawyers' Ethics, supra note 33 at 25-31.
(43) Ibid at 32-33.
(44) An example of something the law can be made to give, but that the law does not actually provide, is where a lawyer sends a demand letter asserting a legal claim that is not valid in order to make another person do what the lawyer's client wants, or where a lawyer uses delay to prevent a matter from proceeding. On the other hand, pleading a limitation period to avoid a just debt is something that the law actually does provide, not something that it can simply be made to give.
(45) Marty Lederman, "Sorry, Ben, but Judge Mukaskey Can (and Should) Answer the Question" (29 October 2007), online: Balkinization <http://balkin.blogspot.com>.
(46) Dunsmuir v New Brunswick, 2008 SCC 9,  1 SCR 190; Woolley, Understanding Lawyers' Ethics, supra note 33 at 31-32.
(47) The problem with this argument arises with immoral laws in wicked legal systems--when, to use an example discussed in the Hart-Fuller debate, a judge makes a statement that a person has committed treason, where the statutory definition of treason is indefensible and, in any event, there is no legitimate reason to believe the person has violated that definition. That judicial statement is not, Fuller argues, law at all, and the question of whether to respect that law in the face of a competing moral claim raises no legitimate moral dilemma; it is the equivalent of choosing "between giving food to a starving man and being mimsy with the borogroves": Lon L Fuller, "Positivism and Fidelity to Law: A Reply to Professor Hart" (1957) 71:4 Harv L Rev 630 at 656. Is that sort of "law" something that a lawyer could zealously advocate for, or may argue shields his advocacy from any other moral assessment ? In my view it does not. While I enter into uncertain territory in taking sides between the positivists and the non-positivists, I am willing to suggest that any claim the law makes to legitimacy and authority has to be based on some minimum moral content of the sort outlined by Fuller and, more recently, by Nigel Simmonds: Nigel Simmonds, Law as a Moral Idea (Oxford: Oxford University Press, 2007). Legitimacy does not require that the law have any particular substantive content, and I may even disagree strongly with the moral position embedded in particular laws. However, to claim legitimacy, a legal system or pronouncement must comply with the basic indices of the rule of law, such as publicity, clarity, coherence, and consistency between stated rules and their application. Without that legitimacy, the claim made for law here does not stand and does not provide any moral justification for the lawyer who works within it. And even from a positivist point of view, I would note that in The Authority of Law, Joseph Raz argues that while in a legal system that grants meaningful rights to political participation there is no moral right to civil disobedience, such a right does exist in a system that does not grant the opportunity for meaningful political participation: "[M]embers of the illiberal state do have a right to civil disobedience which is roughly that part of their moral right to political participation which is not recognized in law" (Raz, supra note 38 at 273). In such circumstances, lawyers would have a similar right to civil disobedience and could not claim law as an authority to justify acts that might otherwise be considered immoral.
(48) In this context, subjective means "how I experience the act," and objective means "can a reasoned justification be given for my actions ?" It is a distinction employed by Bernard Williams in the context of utilitarianism. Williams argues, for example, that a person who kills one person to save 20 may be able to objectively justify the morality of doing so, but will nonetheless subjectively experience doing so as fundamentally immoral. For that reason, Williams suggests, objective moral principles have a limited role in guiding or evaluating human conduct: Bernard Williams, Ethics and the Limits of Philosophy (Oxford: Routledge, 2006). Daniel Markovits has explored in detail the implications of this point of view for lawyers' ethics and has tried to articulate a modality of lawyering that unites the subjective and the objective: Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age (Princeton: Princeton University Press, 2008). Markovits' analysis is problematic in a variety of ways. And my point is that our concern, in articulating the meaning of independence of the bar and its ethical foundations, is only with the objective morality of the lawyer's role; see Alice Woolley, "If Philosophical Legal Ethics Is the Answer, What Is the Question?" (2010) 60:2 UTLJ 983; Alice Woolley "Truth or Truthiness? A Modern Legal Ethics' Understanding of the Lawyer and Her Community" (2010) 13:2 Legal Ethics 231.
(49) For a similar analysis of the lawyer's role, see Graham, supra note 7 at 47-53 and 69-73.
(50) Barry Barton, "The Theoretical Context of Regulation" in Barry Barton et al, eds, Regulating Energy and Natural Resources (Oxford: Oxford University Press, 2006) 11 at 13-14.
(52) Which I discuss below in Section IV, Subsection C.
(53) Other definitions of self-regulation might be possible; I am using this more conventional definition here.
(54) David Wilkins notes the extent to which different regulatory mechanisms are likely to undermine or foster different types of lawyer independence. See Wilkins, supra note 9 at 867-73.
(55) See generally Richard Devlin & Albert Cheng, "Re-calibrating, Re-visioning and Re-Thinking Self-Regulation in Canada" (2010) 17:3 International Journal of the Legal Profession 233. In the article, Devlin & Cheng suggest that Canadian regulators can be understood to be engaging in "defensive self-regulation" in response to regulatory developments in other countries.
(56) Woolley, Understanding Lawyers' Ethics, supra note 33 at 71-72.
(57) See generally ibid at 71-75.
(58) Central Trust Co v Rafuse,  2 SCR 147 at para 58, 31 DLR (4th) 481.
(59) See Graybriar Investments Ltd v Davis & Company, 46 BCLR (2d) 164 (available on QL); MacCulloch v McInnes, Cooper and Robertson, 2001 NSCA 8, 189 NSR (2d) 324; Frumusa v Ungaro, 154 ACWS (3d) 1062 (available on QL), affd  OJ No 686 (QL); Hagblom vHenderson, 2003 SKCA 40, 232 Sask R 81.
(60) The Canadian Bar Association, CBA Code of Professional Conduct, Ottawa: CBA, 2009, ch II, rules 1-2; Federation of Law Societies Canada, Model Code of Professional Conduct, Ottawa: FLCA, 2009, ch 11, commentary 2.01(1); The Law Society of Upper Canada, Rules of Professional Conduct (Toronto: LSUC, 2000) rule 2.01(1); Code of ethics for advocates, RQ c B-1, r 1, ss 3.01.01, 3.03.01; The Law Society of Alberta, Code of Conduct (Calgary: LSA, 2011) ch II, rule 2.01(1); Law Society of New Brunswick, Code of Professional Conduct (Fredricton: LSNB, 2003) ch II, commentary 5; The Law Society of British Columbia, Professional Conduct Handbook (Vancouver: LSBC, 2011) ch III, rule 1.
(61) See e.g. Law Society of Alberta v Syed,  LSDD No 211; Goldberg v Law Society of British Columbia, 2009 BCCA 147, 92 BCLR (4th) 18.
(62) Indeed, it is only where the damages are significant that the legal action will be worth pursuing for the client.
(63) Some law societies may require that fees be reimbursed or that amounts be paid into a compensation fund that benefits wronged clients generally. See e.g. Law Society Act, RSO 1990, c L-8, ss 13-14.
(64) The Office of Legal Complaints is overseen by the Legal Services Board, which also has regulatory authority over the bodies responsible for regulating solicitors and barristers in England and Wales. The Legal Services Board appoints the Chair of the Office of Legal Complaints. It also approved the Scheme Rules of the Legal Ombudsman that were written by the Office of Legal Complaints and which I have relied upon here in describing what the legal ombudsman is empowered to do.
(65) Legal Services Act 2007 (UK), 2007, c 29 [LSA 2007].
(66) Legal Ombudsman, Scheme Rules, s 2.1, online: Legal Ombudsman <http://www.legalombudsman.org.uk>. The Ombudsman's Scheme Rules are approved by the Legal Services Board, the general body charged with overseeing the regulation of the legal profession in England and Wales.
(67) Ibid, r 2.7-2.8.
(68) Ibid, r 5.37.
(69) Ibid, r 5.38.
(70) Ibid, r 5.43-5.45.
(71) Ibid, r 5.40.
(72) Ibid, r 4.1, r 5.3, r 4.4-4.8.
(73) Ibid, r 5.1-5.35.
(74) Ibid, r 5.7 [emphasis omitted].
(75) Ibid, r 5.15.
(76) Ibid, r 5.19.
(77) The regulatory bodies in England are different for solicitors, barristers, and other legal service providers. Ibid, r 5.59.
(78) Ibid, r 6.3-6.4.
(79) Ibid, r 2.8. A client could conceivably complain if he lost a case because the lawyer exceeded the law. That seems likely to be exceptional, however.
(80) As noted by one of the referees of this paper, however, the pressures on small law firms from their clients can also be significant. The existence of a legal ombudsman does have the potential to add to the power that those clients have, and in that way it creates a risk that those lawyers will also be pressured to push the boundaries of the law inappropriately. This is why, as suggested in the text, it is crucial that a legal ombudsman be expressly directed to be sensitive to the importance of lawyers refusing improper instructions from their clients.
(81) My only qualification to this is that, as discussed in the following section, I have some discomfort with the extent to which the English regulatory changes seem uninterested in the question of the lawyers' obligations to ensuring that representation of clients stays within the bounds of legality. While lip service is paid to those requirements, they have been de-emphasized in the code of conduct for solicitors, and they are always less emphasized than consumer interests.
(82) Law Society of Alberta, 2009 Annual Accountability Report, online: Law Society of Alberta <http://www.lawsociety.ab.ca>.
(83) Ontario benchers are paid for a portion of their law society activities.
(84) Nor are benchers in British Columbia or Nova Scotia, although benchers in Ontario are paid for hearing disciplinary matters.
(85) In other provinces, regulation of other legal service providers, such as notaries, is done separately. This is the case in both British Columbia and Quebec.
(86) British Columbia, Office of the Ombudsman: What We Do, online: Office of the Ombudsman <http://www.ombudsman.bc.ca>. In Ontario, see Ontario, Office of the Fairness Commissioner, Law Society of Upper Canada, online: Office of the Fairness Commissioner <http://www.fairnesscommissioner.ca>.
(87) Devlin & Cheng, supra note 55.
(88) The federal Competition Bureau has issued reports on the regulation of lawyers. See e.g. Self-RegulatedProfessions: Balancing Competition and Regulation (Gatineau: Competition Bureau, 2007), online: Competition Bureau: <http://www.competitionbureau.gc.ca>. However, the Competition Bureau's authority is limited to the power to persuade: Jabour v Law Society of British Columbia  2 SCR 307, 137 DLR (3d) 1.
(89) Legal Professions Act, SBC 1998, c 9, s 3.
(90) This followed from the 2004 Clementi Report and the many discussions and consultations that followed that report: Review of the Regulatory Framework for Legal Services in England and Wales, Final Report (London, UK: Legal Service Review, 2004), online: National Archives <http://webarchive.nationalarchives.gov.uk>.
(91) LSA 2007, supra note 65 s 30.
(92) Ibid, s 31
(93) Ibid, s 32.
(94) Ibid, s 1.
(96) Legal Services Board, Annual Report 2009/10 (London, UK: The Stationery Office, 2010) at para 38, online: Legal Services Board <http://www.legalservicesboard.org.uk>.
(97) Regulatory activities for solicitors also involve a distinct adjudicative tribunal, the Solicitors Disciplinary Tribunal. For Barristers it appears that the totality of the professional misconduct regulation is done by the Bar Standards Board. See: Bar Standards Board, "The Bar Standards Board's Complaints Process: Information for Barristers", online: Bar Standards Board <http://www.barstandardsboard.org.uk>.
(98) The Law Society Council is made up of elected members of the profession of solicitors. See The Law Society, Royal Charter and Supplemental Charters (October 2008), online: The Law Society <http://www.lawsociety.org.uk>. It appoints the SRA Board and the chair of that board sits on a joint board with the Law Society. See The Law Society, General Regulations, (2011) s 14(1A).
(99) Ibid, s 14(6).
(100) As described above, see supra notes 91-95 and accompanying text.
(101) Solicitors Regulation Authority, "Delivering Outcomes-Focused Regulation: Policy Statement" (30 November 2010) at para 45, online: Solicitors Regulation Authority http://www.sra.org.uk [Solicitors Regulation Authority, "Delivering Outcomes-Focused Regulation"].
(102) Solicitors Regulation Authority, SRA Code of Conduct 2011 (Redditch: Solicitors Regulation Authority, 2011), The Principles [SRA Code of Conduct 2011] (the principles at the introduction to the draft code require that the solicitor "uphold the rule of law and the proper administration of justice" and direct the solicitor to give precedence in circumstances of conflicting principles to the principle "which best serves the public interest . . . especially the public interest in the proper administration of justice").
(103) Solicitors Regulation Authority, Solicitors' Code of Conduct 2007 (Redditch: Solicitors Regulation Authority, 2007), r 2.01(1)(a).
(104) SRA Code of Conduct 2011, supra note 102, ch 1, Outcome O(1.2) [emphasis in original].
(105) Ibid, ch 5.
(106) Solicitors Regulation Authority, "Delivering Outcomes-Focused Regulation", supra note 101 at para 9.
(107) Ibid. See e.g. the suggestion at para 22 that the "primary aim [is] achieving positive outcomes for clients", the statement at para 24 that the handbook they have drafted for lawyers "provides a clear focus on the achievement of positive outcomes for consumers and gives firms flexibility to decide how those outcomes can best be achieved taking into account the particular characteristics of their business and their clients", and the reference in para 32 of lawyers' obligations to clients "and the public", while para 33 mentions only the need to "ensure potential negative impacts on consumers are prevented". Para 25 does indicate that the achieving of the outcomes should be "underpinned by a strong ethical framework", and para 53 references "high standards of ethical behaviour". See also para 105 (referencing consumer interests and the public interest).
(108) Solicitors Regulation Authority, "Delivering Outcomes-Focused Regulation", supra note 101 at Annex D, s 2.3.
(109) The Solicitors Disciplinary Tribunal is created by the Solicitors Act1974 (UK) 1974, c 47, ss 46-49. The SRA does say in its Policy Statement that it will respond to breaches in a manner "informed by the relative risk that any breach presents" so that the response is proportionate: Solicitors Regulation Authority, "Delivering Outcomes-Focused Regulation", supra note 101 at para 87. In 2011 the SRA gained statutory power to fine individuals and firms itself in some cases; in those cases it will not need to take cases to the Solicitors Disciplinary Tribunal.
(110) Or, in unusual circumstances, others. Anyone can bring a case before the Disciplinary Tribunal, although normally it is the SRA that does so: Solicitors Disciplinary Tribunal, Constitution and Procedures: Applications, online: Solicitors Disciplinary Tribunal <http://www.solicitorstribunal.org.uk>.
(111) Solicitors Disciplinary Tribunal, Constitution, online: Solicitors Disciplinary Tribunal <http://www.solicitorstribunal.org.uk>.
(113) Solicitors Act 1974, s 46; Solicitors Disciplinary Tribunal, Appointment of Tribunal Members: Further Particulars, online: Solicitors Disciplinary Tribunal <http://www.solicitorstribunal.org.uk>. The lay member rate is said to be under review.
(114) Solicitors Disciplinary Tribunal, supra note 111 .
(115) Solicitors Act 1974 (UK), s 47.
(116) Although that is not the case for barristers, as noted supra note 97.
(117) Ralston S Alexander, "President's View: Lawyer Independence in the Balance" (2005) 2 Benchers' Bulletin (April-May), online: Law Society of British Columbia <http://www.lawsociety.bc.ca>.
(118) See Arthurs, "The Dead Parrot", supra note 10; Harry Arthurs, "Why Canadian Law Schools Don't Teach Legal Ethics" in Kim Economides, ed, Ethical Challenges to Legal Education and Conduct (Oxford: Hart Publishing Ltd, 1998) 112.
(119) This is so even if some occasionally forget one part during a representation.
(120) See Adam Dodek, "Regulating Law Firms in Canada" SSRN (13 January 2012), online: Social Science Research Network <http://papers.ssrn.com>.
(121) This would include decisions about whether an applicant for law society admission should be denied admission because of concerns with "character."
(122) If review of applicants' character is retained, however--which is not desirable, but perhaps inevitable--hearings on character would take place at the disciplinary tribunal. See Alice Woolley, "Tending the Bar: The 'Good Character' Requirement for Law Society Admission" (2007) 30:1 Dal LJ 27.
(123) Leonard T Doust, QC, Foundationfor Change: Report of the Public Commission on Legal Aid in British Columbia (Vancouver: Public Commission on Legal Aid, 2011) at 7, online: Public Commission on Legal Aid <http://www.publiccommission.org>.
(124) Ibid at 12.
(125) Ibid at 35-36.
(126) Jeremy Hainsworth, "Government budget-slashing cuts into Legal Aid", The Lawyers Weekly 30:24 (29 October 2010) 14.
(127) Ontario Civil Legal Needs Project, Listening to Ontarians: Report of the Ontario Civil Legal Needs Project (Toronto: Ontario Civil Legal Needs Project Steering Committee, 2010) at 46, online: Law Society of Upper Canada <http://www.lsuc.on.ca>.
(128) Saskatchewan Ministry of Justice and Attorney General, Unrepresented Litigants Access to Justice Committee: FinalReport (Regina: Ministry ofJustice and Attorney General, 2007) at 26-27, online: Saskatchewan Ministry of Justice and Attorney General <http://www.justice.gov.sk.ca>. The report notes that the extent of the unrepresented-litigants problem varies regionally and across groups and is somewhat difficult to measure. See also Alberta Rules of Court Project, Self-Represented Litigants (Edmonton: Alberta Law Reform Institute, 2005), online: University of Alberta Faculty of Law <http://www.law.ualberta.ca>.
(129) Other factors may have also contributed, including in particular income inequality and the gap between the cost of legal services and the actual income of most Canadians. See Woolley, Understanding Lawyers' Ethics, supra note 33, at ch 10. The gap between legal needs and legal services was not created by regulatory deficiencies and cannot be cured by regulation. However, regulation can ameliorate the gap to some extent and should be designed so as not to make it worse.
(130) See Melinda Buckley, "Moving Forward on Legal Aid: Research on Needs and Innovative Approaches" (Ottawa: Canadian Bar Association, 2010) at 52-53, online: Canadian Bar Association <http://www.cba.org>, although there is some ambiguity in the numbers.
The reports on legal aid all document funding cuts. However, the data from Statistics Canada suggest that legal-aid funding and representation increased from 2004 to 2008. The difference appears to be when the numbers are controlled for population growth. See Statistics Canada, Tables 258-0001-258-0004 (Ottawa: CANSIM, 2011), online: <http://www40.statcan.gc.ca>. Also, in general growth in legal-aid funding is purely on the criminal side, with the civil side bearing increasing cuts in service to compensate for increased criminal costs (Buckley makes this point).
(131) Michael Trebilcock, "Report of the Legal Aid Review 2008" (Ottawa: Attorney General of Ontario, 2008) at 74, online: Ontario Ministry of the Attorney General <http://www.attorneygeneral.jus.gov.on.ca>.
(132) Ibid. Although Ontario legal-aid lawyers went on strike in 2010, forcing an increase in the hourly rates of pay.
(133) Alice Woolley, "Imperfect Duty: Lawyers' Obligation to Foster Access to Justice" (2008) 45:5 Alb L Rev 107.
(134) Michael Trebilcock, "Regulating the Market for Legal Services" (2008) 45:5 Alb L Rev 215 225 [Trebilcock, "Regulating the Market"].
(135) Alice Woolley, "Time for Change: Unethical Hourly Billing in the Canadian Legal Profession and What Should Be Done About It" (2004) 83:3 Can Bar Rev 859 at 888.
(136) Dodek, supra note 120.
(137) Trebilcock, "Regulating the Market", supra note 134 at 225.
(138) Ibid at 226.
(139) See e.g. Beverley McLachlin, "Remarks of the Right Honourable Beverley McLachlin, PC: The Challenges We Face" (speech presented at the Empire Club ofCanada, Toronto, 8 March 2007), online: <http://www.scc-csc.gc.ca>; Michael McKiernan, "Lawyers Integral in Making Justice Accessible: McLachlin", Law Times (20 February 2011), online: <http://www.lawtimesnews.com>.
(140) Christie v British Columbia (Attorney General), 2007 SCC 21,  1 SCR 873 [Christie].
(141) Ibid at para 1. The idea was that the revenues generated by the tax would be used to pay for legal services. However, the revenues were paid into the government's general revenue account, and it was not clear how much of the money was in fact used for legal aid or other access-to-justice initiatives.
(142) Ibid at para 3.
(144) Ibid at para 13.
(145) Ibid at para 14.
(146) Ibid at para 17.
(147) Ibid at para 21.
(148) Ibid at para 27.
(149) Ibid at para 28.
(150) See e.g. Smith v Jones  1 SCR 455, 169 DLR (4th) 385, where the Court asserted that without privilege, people will not speak to lawyers.
(151) See e.g. R v Sinclair, 2010 SCC 35,  2 SCR 310; R v McCrimmon, 2010 SCC 36,  2 SCR 402; R v Willier, 2010 SCC 37,  2 SCR 429.
ALICE WOOLLEY [dagger]
[dagger] Professor of Law, Faculty of Law, University of Calgary. I would like to thank the anonymous referees, Randal Graham, and Richard Devlin for their very helpful comments on this paper; Brynne Harding for her research; and also the School of Public Policy for its financial support of the research associated with the paper's preparation.
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|Title Annotation:||IV. Reforming Regulation of Canadian Lawyers B. The Law Societies - Reforming Self-Regulation through V. Conclusion, with footnotes, p. 175-203|
|Publication:||University of British Columbia Law Review|
|Date:||Jan 1, 2012|
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