Is the World as We Know it Coming to an End?
First published on slaw.ca
Each year, the Law Society of Upper Canada has an awards ceremony at which very worthy lawyers and paralegals are honoured. Hearing about the contributions and professional lives of the award recipients is inspiring and underscores the value of our professions to the society that we serve.
There was a whimsical theme in some of the speeches this year. By way of good-natured self-deprecation, one recipient described receiving the call from the Treasurer telling him that he had been awarded the Law Society Medal. He said that his first reaction on learning that there was a call from the Law Society was to wonder what he had done wrong, certainly not that he was being awarded for having done good. Other recipients identified with this comment. As with most good humour, there was some hard truth underlying these amused words. Being in a self-regulating profession means that we collectively set standards of professional conduct and enforce those standards by discipline. Communications from the Law Society are nervous-making for that reason. Our relationship individually, and collectively, with the Law Society is ambivalent.
The complicated relationships arising from professional self-regulation have been highlighted for me in several recent discussions, both in private and in Convocation.
One discussion was about the upcoming move of the Law Society Tribunal out of Osgoode Hall to its own offices with some benchers objecting. Objections to the move could be seen as being old-fashioned and anachronistic – just as the Law Society is often seen to be by many. Another issue raised in Convocation was about increasing use of appointed non-bencher adjudicators. This could be seen as being concern about loss of authority and importance. In another discussion, a bencher colleague raised the same issue worrying that the nature of discipline adjudication could suffer by the use of those skilled as adjudicators rather than by those elected by, knowledgeable about, and supportive of, the profession.
Some history may help better understanding of what underlies these concerns. For most of the long history of the Law Society, discipline proceedings were not by hearing panels applying the Rules of Professional Conduct. Rather, the benchers in convocation considered whether lawyers had misconducted themselves applying their collective view of what was proper professional conduct. The senior members of the profession, as they were, directly governed a much smaller profession.
The earliest Professional Conduct Handbook that I have found was released in 1964. It was signed by Treasurer John Arnup, as he then was. In a preface, Mr. Arnup wrote that “This handbook contains rulings of the Professional Conduct Committee of Convocation upon some important aspects of professional ethics, as well as certain previously published notices from the Discipline Committee, the Canons of Ethics of the Canadian Bar Association and the Rules of the Law Society respecting accounts”. Mr. Arnup went on to say the “As further rulings and reasons for judgment of the Discipline Committee in matters of general interest are approved by Convocation, they will be printed in the Ontario Reports in a convenient form, so that they may be readily detached and added to this handbook”. Much like the common law, the rules of professional conduct by the 1960s were the rulings and reasons approved by Convocation.
By the late 1970s, the Professional Conduct Handbook had evolved to be a book of rules rather than a collection of rulings and reasons. This was partly a codification of prior rulings but also reflected a more legislative than case-by-case approach to rule-making. This change was likely influenced by the Code of Professional Conduct adopted by the Canadian Bar Association in the early 1970s. Harry Arthurs and Brendan O’Brien were the Ontario members of the Special Committee on Legal Ethics that reported in 1973 as to a proposed new CBA code saying:
The present Canons of Legal Ethics, which were adopted by The Canadian Bar Association in 1920, are sound in substance but are expressed, for the most part, in generalizations with few practical examples given. …
The present Canons have been supplemented, from time to time, by Rulings or Rules of various Governing Bodies which have been published and have received wide distribution. While these have been helpful to the profession, in many instances they deal with isolated subjects and are not co-ordinated.
By the late 1990s, the Professional Conduct Handbook had become the Rules of Professional Conduct in Ontario. After harmonization through the Federation of Law Societies Model Code, the professional conduct rules across the country are now generally known as the Codes of Professional Conduct. What was once the case-specific judgments of the senior members of the bar is now a regulatory code of conduct.
There has also been a significant change in the way that allegations of professional misconduct are adjudicated. As Mr. Arnup’s preface indicates, discipline decisions in Ontario were once made by bencher member of the Discipline Committee subject to the benchers as a whole in Convocation. To the 1990s, Convocation in Ontario sat in what was called Discipline Convocation to receive reports from the Discipline Committee. Convocation would receive the report and recommendation of the Discipline Committee, hear submissions for the Law Society and for the Lawyer and make its decision which might or might not be as recommended by the Discipline Committee. By the end of 1999, discipline decisions in Ontario were no longer by the Discipline Committee and Convocation but rather by hearing panels with a right of appeal to the appeal panel.
There is a third significant change made over the decades. For most of the history of the Law Society, the benchers were elected lawyers[i]. Following the McRuer Inquiry into Civil Rights and informal innovation by the Law Society under the leadership of the great Sydney Robins, the Law Society Act was amended in 1973 so that four (now eight) non-lawyers appointed by government became benchers. The first lay benchers joined Convocation in 1975.[ii] More recently, elected paralegal benchers joined Convocation as a result of the 2006 amendments to the Law Society Act whereby the Law Society came to be the regulator of paralegals as well as lawyers. The composition of Convocation has changed although elected lawyer benchers still predominate.
Amy Salyzyn reported and commented on a significant further change in her post to this column in late 2013 entitled Magic Bullet or Band Aid? LSUC’s “Enhanced Tribunals Model. Starting in September 2013, David A. Wright became the first full-time non-bencher Chair of what is now the Law Society Tribunal[iii]. While less noted, this appointment is paralleled by an increase in the proportion of non-bencher lawyer, paralegal and lay adjudicators appointed to the Law Society Tribunal and other changes[iv].
When one envisages the evolution from discipline by senior lawyers in Convocation reflecting their views and experience as to what was proper conduct to disciplinary adjudication by hearing panels of lawyers, paralegals and lay people, some of whom are benchers, applying regulatory codes of conduct, it is clear that much has changed. Moving the Law Society Tribunal out of Osgoode Hall symbolizes these significant changes. There was a time when Convocation Room was the place where professional discipline was decided by lawyer benchers based on their collective judgment. That time has passed. The role of the elected bencher in discipline is much different than it once was.
There are, of course, sound reasons for this significant evolution. It is difficult to govern one’s affairs based on what the “great and the good” may consider proper after the fact. Decision-making about individual conduct in Convocation by dozens of people based on submissions and speeches has obvious frailties. Elected benchers, even with appointed lay benchers, sitting on hearing panels may not have the experience and skills to provide the best possible adjudication. Recent innovation has been designed to professionalize adjudication of the conduct of lawyers and paralegals in Ontario.
But “so what?” – isn’t this progression all to the good? Aren’t benchers who are concerned about this obviously necessary evolution simply old-fashioned and self-important?
The point of this column is to suggest, as is so often the case, that change is often complicated, with things being potentially lost as well as things being potentially gained.
The potential gain in independent adjudication by experienced skilled adjudicators is evident. It seems clear that better adjudication was needed and that these changes were required. To use Amy Salyzyn’s slaw.ca column title, this is no magic bullet nor is it a mere Band Aid.
The potential cost and the concern expressed by some may reflect the several rationales for self-regulation. One of the important rationales for self-regulation is the importance of independence from the state. If the government regulates the legal professions then defence of accused persons in government prosecutions is put at risk of potential impairment. More broadly, it seems clear that lawyers are important protectors of rights and freedoms and that independence from the state is arguably fundamental feature of a free and democratic society. This broad notion of independence of the bar was recently found by the Court of Appeal for British Columbia[v] to be a principle of fundamental justice, although that was not accepted by the Supreme Court of Canada[vi]. But it seems obvious that distancing adjudication of professional conduct from the Law Society is not inconsistent with this broad notion of independence. Whether by a tribunal with appointments by Convocation or by the Law Society itself, this discipline is independent of the state.
Another rationale for professional self-regulation is effectiveness. Lawyers, doctors and engineers, for example, best understand proper professional practice in their respective domains. Realistically, it would be difficult to see effective professional regulation without the professional expertise of those being regulated. This effectiveness of course must be balanced against the risk of self-interested regulation. There is the risk that lawyers may not set standards as high as they should because colleagues are being judged or because lawyers can imagine themselves in the same situation. For these reasons, for transparency, and for better perspective, the requirement of a lay person on each hearing panel is important.
Some say that appointing tribunal members with adjudication expertise could compromise this effectiveness. Finding adjudicators who have experience and expertise in both legal practice and in adjudication might be a challenge. Whether one speaks of pendulums swinging or the law of unintended consequences, solving one problem can sometimes lead to another. Adding adjudicative expertise might lead to diminution in practice expertise. Adding adjudicators who are not involved in self-regulation, including setting conduct rules, risks loss of regulatory expertise in adjudicative decision-making. But this need not be a question of absolutes but rather should be a matter of balance. Both expertises are needed. While perhaps not be available in each individual adjudicator, the Tribunal as a whole can have the necessary expertise and adjudicator education may assist. In any event, this concern may be an example of our common tendency to reflect back on the good old days that never were and our tendency not to recognize that things have changed. I wonder whether the most senior members of the bar “back in the day” really understood the practices of ordinary lawyers. Perhaps. Also, modern practice is varied and specialized. Is the better answer specialized panels, panels of small firm real estate solicitors, big firm litigators, paralegals and in-house counsel for example, each dedicated to cases from within their sphere? That answer has its own challenges.
Some of the concern about these innovations appears to be about something else. What is said by some is that the establishment of an independent Tribunal is inconsistent with self-regulation. Their assertion is that being elected is important, in and of itself, to discipline adjudication. There seem to be two aspects to this assertion. The first is that elected adjudicators will be better adjudicators by virtue of having been elected. The notion is that those selected by the profession as a whole will be best qualified. The second is that those subject to discipline and those evaluating discipline decisions will better accept the judgments of those elected by the profession.
What seems to be at issue is expertise and legitimacy within the profession. If a correct reading of what underlies this concern, I find this interesting as perhaps reflecting something of a democratic rationale for self-regulation – that those we elect have greater legitimacy and expertise in telling us what to do (and not do). But, I personally do not find this to be particularly compelling. Canadians, rightly I think, are not much impressed with the legitimacy or expertise of elected judges. While there is functional overlap between rule/policy setting and adjudication, the benchers remain responsible for the conduct rules and appointment of the adjudicators. We elected benchers are, I suspect, more impressed with our own importance having been elected than are our colleague electors. And as to the legitimacy of the traditional elected-bencher system, it is not obvious that there is much existing reverence for the results of that approach.
At the risk of ending on a rather unexciting note, my take on all of this is that we find ourselves in a pretty sensible, albeit inevitably imperfect, place. Change always risks loss. Predicted gains are not always achieved There is value in professional pride in tradition and tradition can be founded on good policy values that are not always evident. But it also seems clear that better adjudication has been needed and that the work done over the last decade by Mark Sandler and others has led to better adjudication. We will never get this right. In making changes, we will undershoot and overshoot. We will cause new problems by solving old problems. But taking into account the relevant principles, I think that we are getting it righter.
[i] Long-term elected benchers became life benchers until recently.
[iii] Notably, David was formerly the chair of the Human Rights Tribunal of Ontario and is highly regarded for his expertise and leadership. Canadian Lawyer recently included David as a nominee for the 2015 Most Influential lawyers in Canada for his leadership of the Human Rights Tribunal of Ontario and the Law Society Tribunal.
[iv] For further perspectives and information about Law Society Tribunal reform see (i) the 2012 LSUC Tribunal Committee report, (ii) David Wright’s 2014 Advocates Society blog and (iii) the Law Times article Move to non-bencher adjudicators lauded
[v] Federation of Law Societies of Canada v. Canada (Attorney General), 2013 BCCA 147 at paras. 105 to 114
[vi] Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7 at para. 80