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SPECIAL REPORT 36 www.canadianlawyermag.com SELF-REGULATION regulation, acknowledged that criticisms of the legal profession are decades old. "What makes this time any different?" the Institute wrote. "For starters, the legal profession is facing an unprecedented crisis in serving the needs of people with legal problems." Law societies' failure to act quickly and adapt to change is one reason other jurisdictions have moved away from self- regulation, says Devlin. For example, Devlin says, the Canadian Association for Legal Ethics flagged the issue of judges returning to practice over a decade ago, but it remains a live issue in Canada. Some alternatives to self-regulation are co-regulation or oversight regulation, says Devlin. A co-regulation model might divide the process of lodging complaints against lawyers among different regulators, while an oversight model might allow decisions made by the law society to be appealed to an independent authority. But the Law Society of British Columbia, for example, says on its website that lawyers are self-regulated as "a part of upholding lawyer independence." "It would pose a conflict of interest if the organization that regulated lawyers was directly or indirectly controlled by the government," the LSBC says, calling lawyer independence a "cornerstone of democracy." "The reason people like self-regulation is obvious. They believe in the independence of the profession — that it should be free from state interference. But they also believe that only they have the expertise to judge themselves," says Devlin. "The question is, 'In a democracy, where all institutions need to be accountable, is self- regulation a defensible regulatory regime?' My argument would be that it's not." It is difficult to have the same body representing the membership and the public interest, says Devlin. At the Law Society of Prince Edward Island, for example, the Legal Profession Act dictates that the regulator should both "uphold and protect the public interest" and "uphold and protect the interests of its members." "There is an inherent conflict of interest there," says Devlin. "There's a very strong temptation and even likelihood that the lawyers' interests will come before the public interest. So, in terms of the statement of principles, that was really a conversation in many ways about some lawyers putting their self-interest or subjective vision ahead of the public interest." Competition Another criticism of self-regulation is that, by making sure lawyers are running the show, the profession can protect its economic interest, says Hadfield, even as litigants go unrepresented amid unaffordable legal fees. It's been more than a decade since Canada's Competition Bureau studied legal regulation. In its last report, it said that many of the restrictions enacted by law societies raise costs for consumers. "The way in which our law societies and bar associations regulate the provision of legal services is the single biggest determinant of the high cost of law, which is the single biggest determinant of the lack of access that the vast majority of people have to legal help," says Hadfield. "Lawyers shouldn't be regulating their own markets." Some of Canada's law societies are taking note of the fault-finding. " The concept of self-regulation has come under increasing scrutiny in other jurisdictions," the Law Society of Yukon wrote when it looked at a new Legal Profession Act a few years ago. "[G] overnments are prepared to step in if the regulation of legal services is not being properly conducted in the public interest." The Law Society of the Northwest Territories has espoused that it is "nimble." "Our ability to get things done is the envy of other law societies," president Alex Godfrey wrote in the LSNWT's latest annual report. The Barreau du Québec is perhaps the most distinctive in Canada, allowing "a more prominent role for the state, a bifurcation of the legal profession, and a greater tolerance of non-lawyer involvement in law firms," law professor Noel Semple wrote in a recent paper. Other law societies, including the LSO, have also considered compliance-based entity regulation — which is used in Australia and has been used and expanded in Nova Scotia since 2005. The Law Society of Manitoba has a system with both appointed and lay benchers in addition to having elections. Still, Canadian law societies sometimes show little appetite for change, says Pink. He points to a 2018 debate at the LSO, which — despite opposition — trimmed down the number of benchers in Convocation. O n t a r i o's M i n i s t r y o f A tt o r n e y General said it clearly approved of a more "streamlined" approach — on the heels of the provincial government's cuts to Toronto's city council for its large, lumbering leadership of 44. Critics argued that Convocation's large membership was "In a democracy, where all institutions need to be accountable, is self-regulation a defensible regulatory regime? My argument would be that it's not." Richard Devlin