Canadian Lawyer

November/December 2019

The most widely read magazine for Canadian lawyers

Issue link: https://digital.canadianlawyermag.com/i/1183528

Contents of this Issue

Navigation

Page 36 of 71

www.canadianlawyermag.com 37 a barrier to efficiency and an invitation for government intervention. But others argued the opposite — that reducing the diverse sundry of voices in Convocation might threaten the law society's privileges. "We're one of the few countries in the world that still allows independent self- regulation of the legal profession. You tinker with the dynamics of that at the profession's and the public's peril," one life bencher said. Will things change? Despite fears around the end of self- regulation, it's unlikely that any one incident will unravel Canada's law society traditions, which are so tightly woven into the profession's psyche. The night before the Law Society of Ontario's statement of principles debate, Justice Frank Marrocco spoke at the Ontario court's annual opening ceremony. "In 1797, Chief Justice Osgoode and Governor Simcoe decided that the legal profession should be self-governing," said Marrocco. "They concluded that a self- governing legal profession was the best way to make legal services available to the people.'" But Marrocco also reminded lawyers that because it was governed by an independent body, the legal profession had a "social contract" to support access to justice. Less than 24 hours later, the benchers reached a compromise on the statement of principles, an issue that had dominated law society discussions since elections in the spring. Durcan praised Treasurer Malcolm Mercer for his leadership in the meetings, fraught by an influx of newcomers unfamiliar with procedure. Still, Hadfield says that bencher elections that stray from the public interest and the access to justice crisis serve as evidence of the "failure" of the self-governance model. "I'm a big supporter of principles and big supporter of diversity," she says. "But these regulators are not doing their job at all. They are not regulating in the public interest. They're having political elections." What law societies can do Mercer concedes that there are problems with the self-regulation model — but there are also benefits. For one, Ontario's law societies are more holistic than split up co-regulators, says Mercer. That offers opportunities for integration and insights with programs such as LawPRO, which provides professional liability insurance. Plus, electing benchers makes sure they are accountable to the profession at large, rather than just a selection committee. With the government already employing prosecutors, funding legal aid and engaging in civil litigation, Mercer says, it could create a "real problem of conflict" if the Ministry of the Attorney General also regulated lawyers. He questions whether a governance overhaul is the right way to address the criticisms of self-regulation. "I think it's very easy to imagine ideal solutions. It's very hard and very expensive to make radical change," says Mercer. "I' ll use the example of England where . . . a whole series of new regulators — frontline regulators and an oversight regulator — were created. That has very significant costs. It requires huge amounts of effort and focus by people to create an entirely new system. And, at the end of the day, it's not completely obvious that it necessarily changes fundamental problems." He says law societies can do more to address problems such as the "echo chamber" of lawyers, pointing to his meetings with self-represented litigants over the past two years. The LSO's paralegal standing committee is also carefully balanced to make sure neither lawyers nor paralegals nor members of the public dominate the discussion. He compared that with the issues that the LSBC has faced integrating paralegals into professional regulation. "The law society has to strive to continue to act in the public interest, and thereby demonstrate it is a regulator worthy of public support," says Mercer. "The system can be improved. It is not prudent to jettison everything because there are problems. It's better to try to fix them." "I think it's very easy to imagine ideal solutions. It's very hard and very expensive to make radical change." Malcolm Mercer

Articles in this issue

Links on this page

Archives of this issue

view archives of Canadian Lawyer - November/December 2019