The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/1183528
SPECIAL REPORT 34 www.canadianlawyermag.com SELF-REGULATION turn at the microphone to discuss whether adding a checkbox to lawyers' annual reports constituted good governance. At the meetings, law society benchers also expressed worries about how the debate would look from the outside. "I just want to remind everybody that we are here as governors in the public interest," bencher and statement of principles supporter Gina Papageorgiou said at one of the debates. Her worry? "The public are not going to understand the nuances." Rempel was one such member of the public who followed Ontario's recent diversity debate, recalling her experiences as an engineer in a regulated, male-dominated profession that caters to Anglo-Saxon backgrounds. The law profession seems to be behind the times, she says. "If I was asked to write a statement saying that I wasn't going to kick dogs and beat cats, I might find it an imposition — since I don't do that anyway, and I don't know why they would be asking that. But I wouldn't choose that one to have the fight on," Rempel says. "It's not the only issue where they could take a stand on over-regulation. To me it sends a bad message to the public." The models of self-regulation There is a need for regulatory reform in the legal profession, says Darrel Pink, who recently retired as executive director of the Nova Scotia Barristers' Society, which he ran from 1990 until last year. "I don't think any law society in this country can rest on its laurels," says Pink. "I ask this question, and I don't ask it glibly: Tell me, what difference do we make at law societies? How do we improve the lot of Canadians? How do we improve the lot of lawyers and the clients that they serve?" Criticisms of law societies are not new. Indeed, Ontario's recent diversity debate echoes decades of dispute over the institution's role in addressing barriers to entering the legal profession. A detailed history of New Brunswick's law society notes that it got the power to discipline members after lawyers' "well- publicized episodes of dishonesty." The LSNB also highlights the pushback it got through the years: that it was a legislated monopoly; that audits violated civil liberties; and that licensing standards made the profession inaccessible to diverse candidates. "So accessible was the profession in the early years of the century that several women and a significant number of Jews were able to attend the Law School; and its very first student was black," the LSNB wrote. "Yet in the scramble to demonstrate to a sceptical public that lawyers were ethical and could be trusted to police themselves, the bar asserted a link between securing more honest lawyers and imposing higher pre-law qualifications." But, despite more than 200 years of governance, it seems that questions about the effectiveness self-regulation in the legal profession have not just persisted but intensified, some lawyers say — as courts struggle to aid self-represented litigants and as technology and consulting firms eye the legal services market. In a study he led in Nova Scotia, Pink found that as people come to Canada from across the world and lawyers are enabled to practise across wider geographies, the self- regulatory system has broken. "We now live in a globalized world, and the norms of responding to the needs of the community have changed," says Richard Devlin, professor at the Schulich School of Law at Dalhousie University in Halifax and chairman of the board for the Canadian Association for Legal Ethics. "If you look to what's happening in the U.K. and Australia . . . there hasn't been any real evidence of a threat to judicial independence. So, I think it is a lot to do with a traditional view of the world." Rempel, for example, lives in a jurisdiction (Australia) that has moved away from the law society self-governance model, amid "general distrust of the legal system by Australians in the 1990s and 2000," writes "Tell me, what difference do we make at law societies? How do we improve the lot of Canadians?" Darrel Pink