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streamlinethe Time to BY JEFF ROBERT S Changing regulatory models around the world may spell the end of self-governance — perhaps it's not such a bad thing. H ow much is independence worth? Canadian lawyers may be asking this question as they prepare to pay their annual law society dues. If the rest of the world is any indication, the self- governing model that underlies Can- ada's legal profession may soon face a day of reckoning. And contrary to conventional opinion, that may not be a bad thing. Our tradition of self-governance has remained largely unchallenged for more than two centuries. It is a source of pride for many in Canada's legal community and is even viewed by some as a fundamental constitu- tional freedom and a requisite for the rule of law. While such sentiments can be stir- ring, the reality of professional self- governance in this country is decid- edly more banal. On a day-to-day basis, most lawyers encounter self- regulation not as a shining ideal, but in the form of a clunky regulatory regime that is both antiquated and expensive. As the costs of self-regu- lation become more apparent and its justifi cations more abstract, changes taking place in other jurisdictions may come to have increasing appeal for Canadian lawyers. From Australia to France, the legal profession is experiencing sweep- ing change through co-regulation and other manners of reform. Even 30 JANU AR Y 2009 www. C ANADIAN Law ye rmag.com England has not been untouched. The Legal Services Act of 2007 has upended the Law Society of England and Wales, the country's venerable solicitor's body. As overseas reforms present implicit challenges to on- going self-governance in Canada, so too do the increasing number of lawyers in this country who dis- cover that professional costs south of the border come at a fraction of the price. These nomads are unlikely to maintain any special reverence for the old and rigid rules of provincial law societies. Change is almost certainly com- ing for the societies that have long governed Canada's lawyers. Before it does, the country's legal community should decide whether self-gover- nance can survive and what, if any- thing, will be lost if it falters. A WATERTIGHT COMPARTMENT For a relatively young country, Can- ada's tradition of professional auton- omy for lawyers is remarkably old. In the case of Ontario, self-regulation preceded Confederation by 70 years and has changed little since that time. According to Blaine Baker, a McGill University law professor and historian who has written extensively about the legal profession, the man- date and powers of the law societies remain largely the same as what they were at their inception. "The em- powering statute is not very differ- ent in 2008 than it was in 1797," says Baker in regard to the Law Society of Upper Canada. "In two centuries, there's never been a wholesale assault on the practice of self-regulation of lawyers." Baker also notes that Canada's law societies have a record of effectively protecting lawyers' prerogatives from encroachment by other profes- sionals. They have also assiduously maintained control over admission and discipline (the "in-and-out function") even after devolving the responsibility for legal education to universities in the mid-20th century. The self-regulation model has un- deniably stood the test of time. But is it still the best one? Its proponents are confi dent that it is. Perry Mack, outgoing president of the Law Soci- ety of Alberta, argues that lawyers are better positioned than civil servants to establish professional credentials. Moreover, he says, lawyers' indepen- dence is an essential corollary to ef- fective advocacy. "It's in the interest of our clients that there are watertight compartments between the state, the courts, and the legal profession. Many matters for which we're retained in- volve confl icts with the state — it's important that clients know that we have undivided loyalty."