Should Lawyers Be Allowed To Regulate Themselves?

Philip Slayton, author of "Lawyers Gone Bad" has some interesting insights into this issue.

What follows is a recent article by Mr. Slayton. It is reproduced with his permission and he retains the copyright.

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"Why should lawyers be allowed to regulate themselves?



By PHILIP SLAYTON
Author of Lawyers Gone Bad

Friday, August 3, 2007



In Canada, lawyers are allowed to run the legal profession - an
institution essential to a democratic society - as they see fit. Their
"law societies" decide how their members will practise law. They
decide who gets to be a lawyer, what financial records must be kept,
how clients funds should be handled, how to maintain professional
competence, how to deal with conflicts of interest and how to
discipline a lawyer who goes bad. Lawyers are given this vast power by
provincial legislatures.

The only possible justification for this legislative gift is that it
is in the public interest. But is it?

The principle behind lawyer self-regulation is that lawyers have a
responsibility to protect citizens from the state, and they cannot do
that unless they are independent. If lawyers were regulated directly
by the state, so the argument goes, they would be subservient to it.
But, long ago, we figured out how to devise state institutions that
operate independently of government - any politician who has been
investigated by the police will attest to that. And the
self-regulatory ability of Canadian lawyers is a gift of the
provincial legislature, which can take it back tomorrow. The
independence argument is illusory.

The history of self-governance by the Canadian legal profession is
spotty, to say the least. It is full of uplifting statements by bar
association presidents, but little else. The disciplinary record is
erratic and unconvincing. In Quebec, for example, a woman named
Christina Finney complained to the Bar of Quebec about lawyer Eric
Belhassen in 1990. Complaints about Mr. Belhassen's conduct began in
1979, but he was not disbarred until 1998. In 2004, the Supreme Court
of Canada upheld an award of damages to Ms. Finney. In a unanimous
judgment, the court said "the attitude exhibited by the [Bar], in a
clearly urgent situation in which a practising lawyer represented a
real danger to the public, was one of ... negligence and indifference
... The very serious carelessness it displayed amounts to bad faith."

Perhaps most importantly, the profession has done little to promote
access to justice. It is a scandal that most Canadians lack recourse
to the law and the legal system, a vital part of government, because
they cannot afford to pay legal fees. It is as if the right to vote in
a general election were only given to those with an income above a
certain level.

Some other countries offer better approaches that Canada should emulate.

Most of our laws and legal institutions derive from those of the
United Kingdom. But even there, radical change is afoot in how lawyers
are regulated and legal services delivered. The principal figure in
this revolution is not some disaffected crank, but a quintessential
establishment man, Sir David Clementi, head of a huge insurance
company and former deputy governor of the Bank of England. In 2003,
the British Lord Chancellor asked Sir David to conduct a review of the
legal profession. His report and recommendations were incorporated
into the UK Legal Services Bill, now before the British Parliament.

Sir David said: "The current regulatory system is focused on those who
provide legal services: The new framework will place the interests of
consumers at its centre."

Two of his key recommendations are that the legal profession be
overseen by a new board, with a lay majority, chaired by a non-lawyer
and directly accountable to Parliament, and that the job of
investigating complaints against lawyers be taken away from the
profession and given to an independent office. It is worth noting that
the Clementi reforms have met little opposition from UK lawyers, and
complete indifference from the Canadian legal profession.

Some of the reforms are not particularly novel. The proposed
independent office to investigate complaints against lawyers closely
resembles the highly successful Office of the Legal Services
Commissioner in New South Wales, Australia. In the U.S., lawyers are
regulated by courts in many states. A professor at an English
university, who telephoned me this week about the controversy
developing in Canada, said that what is starting to happen here is
part of an international movement to reform governance of all
professions; it's just that Canada is a bit behind.

Law and the legal system belong not to the legal profession, but to
all Canadians. We can start in Ontario, where an election is coming.
Let's suggest to candidates for office that Ontario finds its own
David Clementi and takes a close look at governance of the legal
profession.

Philip Slayton, a former law

professor and dean, was a partner at a major Toronto law firm.

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