Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M a y 2 0 1 4 7 REgionAl wRAp-up atlantIC t he sum is greater than its parts is a motto that may well apply to regulation as well as creativ- ity. The Nova Scotia Barristers' Society is currently looking at shifting from a regulatory system that licenses indi- vidual lawyers to one that licenses legal entities. It's about time, says NSBS President René Gallant. "In spite of much change in how and where lawyers practise and why people need lawyers, our method of regulation has not evolved on pace with the advancement of technology or of government, civil, and commercial interactions." Entity regulation would license entire law firms as well as other legal groups or parts of organizations such as a department of justice or a workers' compensation appeal tribunal. In doing so, it would promote mitigating risk instead of slapping wrists. "We want to be proactive and preventative," says Gallant. "Currently we have a fault- based system. Entity regulation moves you to a proactive system." Inherent in such a system would be requirements to have structures in place to mitigate risk. In Australia, for example, where entity regulation is in place in at least one state, firms and other entities must comply with standards set by the regulator. "Firms do a self-assessment," explains Gallant. "[Entity regulation] provides law firms with a management-system approach." It does much more than that, accord- ing to a consultation paper prepared by NSBS. Currently, the society regulates the legal profession primarily by creat- ing and enforcing detailed rules and regulations that try to capture every permutation and combination of tasks and responsibilities for individual law- yers, states the paper. "With the dra- matic changes in the way law is prac- tised, some suggest this has become an impossible task because, in part, it fails to recognize that today, many decisions are made and services provided by law firms, rather than individual lawyers." Furthermore, the paper notes, more lawyers now practise in environments, such as large corporate legal depart- ments that are not contemplated by the traditional one-size-fits-all, rules-based approach. "It is much tougher to prac- tise law today than it was even five to 10 years ago," Gallant notes. "Lawyers need a regulator that understands their concerns." A move to entity regulation would do more than this. It would also help address several other hot-button issues in the legal profession. Paralegals, for example, would not have to be licensed separately or specifically rolled into the mandate of the law society. "By regulat- ing the entity, we will ensure that every- one covered by the entity is regulated," says Gallant. The NSBS president also believes entity regulation will enhance access to justice. "The whole point is to ensure clients are protected and can get the services they need." No discussion about entity regula- tion, he adds, will be complete without exploring alternative business struc- tures. "ABS has to be part of the con- versation." In Nova Scotia, it already is. A 72-page report, "Transforming Regulation and Governance in the Public Interest," prepared last year by the bar society's director of professional responsibility devotes an entire sec- tion to the creation of new ownership models. Nova Scotia is not alone in its explora- tion of entity regulation as an improved approach to licensing a profession that is significantly different from its pre- decessors. However, the provincial bar society is much further ahead in that exploration. The first seeds were sown last year when the NSBS approved a strategic plan calling for it to exam- ine what was happening elsewhere in the world in this and related areas. That led to the release of "Transforming Regulation" in October. Now Gallant says the society may be only six to 12 months away from imple- menting changes including entity regu- lation. While complicated, he notes, much of the groundwork has already been laid. "Legislative changes may be required, but we already have a lot of the tools we need in place." — DoNALEE MouLtoN donalee@quantumcommunications.ca nsbs eyes moVe to more ProaCtiVe regulation René Gallant says it's time the NSBS shifts its focus.

• Cover