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 O C T O B E R 2 0 1 5 19 M ost lawyers have likely heard or read the phrase somewhere, and yet to many, "entity regulation" doesn't really mean much. But as law societies across Canada consider what could be the biggest shift in the regulation of the legal profession in the last century, becoming familiar with entity regulation may no longer be an option. "I agree it is not the clearest of phrases," laughs Jill Perry, president of the Nova Scotia Barristers Society. Perhaps nowhere else in Canada is the phrase better known than in Nova Scotia, which is on the cusp of being the first jurisdiction in the country to reconfigure regulation of the legal profession. When it comes to bold new steps in governing the legal profession, Nova Scotia, it seems, likes to lead the pack. In 2013, the NSBS' former president Timothy Daley came to Ontario to proudly tell his counterparts at the Law Society of Upper Canada about his province's unique disci- pline tribunal for lawyers who suffer from mental illness. Today, law society executives across the country are again watching Nova Scotia as it paves the way to a new era of regulation for the legal services industry in Canada. After the NSBS council gave the go-ahead to entity regulation, which it now refers to as "legal services regulation," a plan to implement the idea is expected by next spring. What exactly is entity regulation? "At its basic level, the phrase 'entity regulation' refers to the fact that it is a shift away from focusing on the individual lawyer. Right now, all legal profession regulation, across the country and in Nova Scotia, focuses on the individual lawyer, whether that individual lawyer is in small practice, on their own, a member of a big organization like legal aid, like I am, or [in] a big firm," says Perry. "The idea is that it wastes a lot of time and doesn't achieve a lot of the goals if you focus on all of those individuals who comply individually with certain requirements that may or may not be appropriate for them." This new approach would move the focus from the individual lawyer to a group of lawyers in the collective in which they work, whether that's a law firm, an in-house legal department, or a legal aid organization. "If somebody is a sole practitioner, then the legal entity is that sole practitioner. If somebody is in a legal aid organization with 10 offices, then the legal entity is the legal aid organiza- tion, or the entity is the large firm," explains Perry. But while provinces like Nova Scotia and Ontario are considering entity regulation, others such as the Law Society of British Columbia are limiting their scope to regulating law firms only. In B.C., the wording was "chosen carefully," says LSBC spokesman David Jordan. Although the province hasn't ruled out a broader consideration of regulating entities other than firms in the future, he says its consultation with the profession this fall will focus on regulating just law firms. Still, in other provinces such as Saskatchewan, there's no decision yet on how to reform regula- tion, but entity regulation is being discussed widely. "We certainly have a green light to look at it and talk about a lot more, and I think decide exactly what entity regulation does mean," says Tom Schon- hoffer, executive director of the Law Society of Saskatchewan. Elsewhere in the country — including Alberta, New Brunswick, Prince Edward Island, and Newfoundland and Labrador — entity regula- tion is in the early days of consideration as law societies monitor developments in jurisdictions like Nova Scotia. At the Law Society of Upper Canada, a working group is busy studying the merits of regulating legal entities alongside individual lawyers. The biggest driver of change across the country seems to be a collective acknowledgement of just how antiquated, and ineffective, the existing regulatory system is. "I think everybody recognizes that the model of regulation we have now of individual lawyers is kind of this anachronism that goes back 100 years when legal services were all delivered by one- or two-man firms, and I'm going to say 'man firms' because that's what they were," says Schonhoffer. Lawyers now organize themselves in larger, more complex groups. But the goal of entity regulation isn't shifting blame to entities. In fact, a focus away from the individual to the collective by itself "doesn't tell you very much," says Perry. "Behind that change of focus away from the individual to the bigger group, there are some other shifts in thinking." One of those shifts, and perhaps the biggest one, is a less prescriptive form of regulation that's starkly different from the current laundry list of rules. "Right now, regulation is based on setting out a whole bunch of different rules lawyers have to adhere to, and we hope, or anticipate, that the goal ?

• Cover