Why should lawyers be allowed to regulate themselves?

Globe and Mail, Aug. 3, 2007

In Canada, lawyers are allowed to run the legal profession - an institution essential to a democratic society - as they see fit. Their "law societies" decide how their members will practise law. They decide who gets to be a lawyer, what financial records must be kept, how clients funds should be handled, how to maintain professional competence, how to deal with conflicts of interest and how to discipline a lawyer who goes bad. Lawyers are given this vast power by provincial legislatures.

The only possible justification for this legislative gift is that it is in the public interest. But is it?

The principle behind lawyer self-regulation is that lawyers have a responsibility to protect citizens from the state, and they cannot do that unless they are independent. If lawyers were regulated directly by the state, so the argument goes, they would be subservient to it. But, long ago, we figured out how to devise state institutions that operate independently of government - any politician who has been investigated by the police will attest to that. And the self-regulatory ability of Canadian lawyers is a gift of the provincial legislature, which can take it back tomorrow. The independence argument is illusory.

The history of self-governance by the Canadian legal profession is spotty, to say the least. It is full of uplifting statements by bar association presidents, but little else. The disciplinary record is erratic and unconvincing. In Quebec, for example, a woman named Christina Finney complained to the Bar of Quebec about lawyer Eric Belhassen in 1990. Complaints about Mr. Belhassen's conduct began in 1979, but he was not disbarred until 1998. In 2004, the Supreme Court of Canada upheld an award of damages to Ms. Finney. In a unanimous judgment, the court said "the attitude exhibited by the [Bar], in a clearly urgent situation in which a practising lawyer represented a real danger to the public, was one of ... negligence and indifference ... The very serious carelessness it displayed amounts to bad faith."

Perhaps most importantly, the profession has done little to promote access to justice. It is a scandal that most Canadians lack recourse to the law and the legal system, a vital part of government, because they cannot afford to pay legal fees. It is as if the right to vote in a general election were only given to those with an income above a certain level.

Some other countries offer better approaches that Canada should emulate. Most of our laws and legal institutions derive from those of the United Kingdom. But even there, radical change is afoot in how lawyers are regulated and legal services delivered. The principal figure in this revolution is not some disaffected crank, but a quintessential establishment man, Sir David Clementi, head of a huge insurance company and former deputy governor of the Bank of England. In 2003, the British Lord Chancellor asked Sir David to conduct a review of the legal profession. His report and recommendations were incorporated into the UK Legal Services Bill, now before the British Parliament.

Sir David said: "The current regulatory system is focused on those who provide legal services: The new framework will place the interests of consumers at its centre."

Two of his key recommendations are that the legal profession be overseen by a new board, with a lay majority, chaired by a non-lawyer and directly accountable to Parliament, and that the job of investigating complaints against lawyers be taken away from the profession and given to an independent office. It is worth noting that the Clementi reforms have met little opposition from UK lawyers, and complete indifference from the Canadian legal profession.

Some of the reforms are not particularly novel. The proposed independent office to investigate complaints against lawyers closely resembles the highly successful Office of the Legal Services Commissioner in New South Wales, Australia. In the U.S., lawyers are regulated by courts in many states. A professor at an English university, who telephoned me this week about the controversy developing in Canada, said that what is starting to happen here is part of an international movement to reform governance of all professions; it's just that Canada is a bit behind.

Law and the legal system belong not to the legal profession, but to all Canadians. We can start in Ontario, where an election is coming. Let's suggest to candidates for office that Ontario finds its own David Clementi and takes a close look at governance of the legal profession.