Malcolm Mercer

(First published on slaw.ca)

Most of us watch politics in the United States with alarm. Falsehoods are routinely offered as if truth no longer matters. Genuine expertise is devalued in favour of unfounded opinion and conspiracy theory. Candidates espousing bizarre conspiracy theories have gained political traction. Calls for hatred and division have become normalized. Shame no longer seems to constrain.

Canadian political culture has not descended to the same depths but there is reason for concern. On social media and elsewhere, trolling, derision and contempt are commonplace. While it would be naïve to think that there were halcyon times of good faith public debate, it appears that the trend is to increasingly disparage and demean rather than to engage. It is not a novel observation that there is much today that fails to respect the advances for democracy and human knowledge that sprang from the age of reason, the Enlightenment[1].

In a previous column, I quoted Professor Danielle Allen who wrote “Within democracies, … congealed distrust indicates political failure. At its best, democracy is full of contention and fluid disagreement but free of settled patterns of mutual disdain. Democracy depends on trustful talk among strangers and, properly conducted, should dissolve any divisions that block it.” We do not have to like each other, respect each other, or agree with each other. But merely attacking and disparaging each other leads nowhere good. Indeed, democracy is thereby put at risk. This concern once seemed theoretical. Whether in Hong Kong, Belarus[2] or the United States, the risk is shown to be real.

Parallels between “legal ethics” and “political ethics”

These observations are far from original. Why include them in a legal ethics column? The point is to draw a parallel between the importance of “civility” in political discourse and “civility” in legal ethics.

The legal system and the political system have parallel purposes. The legal system seeks to resolve specific disputes of various kinds. Our approach where disputes must be resolved is ordinarily the adversarial system. Parties to a dispute put their best factual and legal case to a neutral decision-maker. Neutral decision-makers find facts and interpret and apply the law. No one does (or at least should) think adjudicative decisions are always right. In civil matters, facts are determined on the balance of probabilities. By definition, adjudicative decisions in civil matters will not uncommonly be wrong in fact. In criminal matters, the requirement of proof beyond a reasonable doubt by definition means that many victims of criminal conduct will not find justice – such is the necessary consequence of trying to avoid wrongful convictions.

Our legal system is the way by which we resolve specific legal differences. The legal system is not perfect, far from it. But it generally is accepted as a reasonably acceptable way to resolve differences, at least compared to the alternatives.

The political system has the parallel purpose of resolving political differences within society. In any society and particularly a diverse society such as ours, not everyone will agree on many important matters. Like the legal system, our political system is the imperfect means by which political differences are resolved. Like legal decisions, there is no assurance that political decisions will be or can be “right”. Rather, the point of the political system is to resolve political reasonably well and, more importantly, through a process that allows decisions to be accepted even by those who disagree with the result. This is why Professor Allen writes that “congealed distrust indicates political failure”.

Role morality and the concept of legal ethics

In my view, the phrase legal ethics is inherently misleading. Legal ethics is not much about moral philosophy or individual ethics. Legal ethics is mostly about role morality rather than individual morality[3]. In this sense, legal ethics seeks to answer the question: “what conduct is required from a legal representative”. A similar question can be asked about judges: “what conduct is required from a judge”. Similar questions can be asked about professionals in other contexts, for example “what conduct is required from a doctor or other health care practitioner”. These questions require pragmatic assessment of what conduct is practically required to make our systems work as intended. The required conduct for different roles will be different for different roles[4] as can be the process by which alleged misconduct is dealt with.

Legal ethics can generally seen as being comprised of duties owed to clients and duties owed to the legal system itself. This reflects the nature of our legal system. Our system is premised on individual human dignity and autonomy. Lawyers and paralegals are an important necessary evil. In a perfect world, people would be able to represent themselves and make their own choices in the legal system. But we do not live in that perfect world – people need expert assistance and need to know that their expert representatives are loyal, competent and that they are advisors rather than the ultimate decision makers. The same is true for doctors. Lawyers protect legal interests. Doctors protect health interests. Clients and patients are entitled to make their own choices with the benefit of expert assistance.

It is fundamental to legal ethics that there are duties owed to the legal system as well as duties owed to clients. A superficial and erroneous view of legal ethics ignores this fundamental requirement and would lead to the claim that the duty of loyalty requires that everything and anything be done to maximize the prospect of success for the client. This erroneous view would countenance leading false evidence, suppressing evidence that is required to be disclosed, misleading the court as to the law and the facts and other such improprieties. Legal ethics does not allow unrestrained advocacy but rather requires counsel to advance client interests within the adversarial system. In this way, the neutral adjudicator is best able to make the best possible decision in a fair process.

Civility and legal ethics

While there has been much debate in recent years about the requirement of civility in legal ethics, that debate has been mostly at the margins – important margins to be sure. One of the problems with the term “civility” is that it really addresses more than one concept. One aspect of civility is about appropriate manners, abusive name-calling and the like. In an adversarial system, it is important that the fight be about what is really in issue (facts and law) and not descend to irrelevant attacks on witnesses, adverse parties, or counsel. Abusive language can be an improper attack. But abusive attacks can be polite. What is and is not an improper attack as a matter of legal ethics and who should be the decision-maker depending on the nature of the alleged misconduct was the subject matter of the important case of Groia v. Law Society of Upper Canada, 2018 SCC 27.

I refer to civility not to talk about the substance of the civility requirement but simply to observe that the point of the civility requirement in respect of disputes is to better ensure that the adversarial process operates properly. An advocate who is improperly “uncivil” may achieve a better result for his or her client (although the opposite is often true) but such is corrosive of the legal system.

Civility and the politics

To return to the parallel that I seek to draw, the same thought applies to the political system. A democratic system is premised on an informed electorate making choices including as to their representatives. Lies about the facts, inappropriate attacks on political adversaries and voter suppression may increase the prospects of political success but at a high cost to the fair and effective operation of the political system. Doing whatever is thought necessary to win an election and doing whatever is necessary to win a case cannot be acceptable. Our fundamentally important legal and political systems depend on competitive conduct that respects the fair operation of these systems.

That there are parallels as described is not surprising. We have an adversarial legal system and a competitive political system. Both depend on participants seeking to win. But both also depend on observing the written and unwritten rules of the game if the systems are to operate properly reasonably well and to be seen as being legitimate.

I would take this parallel one step further beyond the legal and the political systems to debate and discussion generally. We sometimes talk about a “marketplace of ideas” which is a somewhat mercantile way of talking generally about the importance of free speech. Knowledge and insight are best advanced by information, debate and discussion. But the “marketplace of ideas” can be corrupted and disrupted just as the legal and the political systems can be – and that seems to be increasing happening in the world of social media and pervasive unmediated mass communication.

The importance of the fair fight

As with legal ethics and civility, it is important to be able to fight politically about what needs to be fought about while not corrupting the fight. Unlike legal ethics and civility, the political system and the marketplace of ideas are not subject to regulation – rather it is social and political norms that apply, and those norms are currently at particular risk[5]. We need to take care to ensure that discussion, debate and disagreement is encouraged – and we need to maintain the social and political norms that support genuine discussion, debate and disagreement. Most of us can see the problems in the conduct of those with whom we disagree. But we need to hold ourselves and those with whom we agree to account.

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[1] The title to this column recalls the line yelled by the late Jerry Stiller in 1997 in Seinfeld – and inadvertently copies the title of Steven Pinker’s book for which I apologize.

[2] As I write this column, Alexander Lukashenko of Belarus is reported to have blasted those gathering to protest alleged poll-rigging and police violence as “rats”, “trash” and “bandits,” Seeking to dehumanize others is the common tactic of anti-democratic forces.

[3] With the result that there can be tension between the conduct required by a professional role and the personal morality of the individual. See for example Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393. As well, some will see the conduct required of a professional to be immoral. Defending a person accused of sexual assault is sometimes seen this way.

[4] There are currently differences of opinion regarding what conduct should be required of benchers of the Law Society of Ontario and the process for dealing with alleged misconduct. Addressing these differences of opinion will necessarily involve consideration of the role of the bencher and what conduct is properly required. While there will be parallels between appropriate bencher conduct and, for example, appropriate director conduct, appropriate lawyer/paralegal conduct and appropriate political conduct, fashioning a code of conduct with respect to the bencher role requires consideration of what conduct is necessary and what conduct is destructive in that context.

[5] I teach a course in legal ethics at Osgoode Hall Law School. Last year, Patrick Cajvan wrote a paper for that class about “political ethics” which drew the parallel between the ethics required in our legal and our political systems. His paper entitled When lawyers are held to ethical and professional standards stricter than the Prime Minister of Canada, what does that say about the integrity of our political system? informed this column. I would offer two responses to the rhetorical question put in this title. The first is that the legal and the political systems are different albeit parallel in some respects. It is not a matter of stricter ethics but rather a question of what is required for the two systems to operate as they should. The second is that it makes sense for lawyers and paralegals to be regulated by a democratically established regulator. It is much more problematic to have independent regulation of those who compete for democratic election. We have such regulation in some respects (for example the Chief Elections Officer) but the ultimate regulator in political matters must be the electorate. This makes our political system more robust – and more frail.

Why do we regulate lawyers and paralegals? Why not just let the “market” do its’ thing? The standard answer is two-fold and relates to the need for legal expertise.

Credence goods and professional regulation

The first part of the answer focuses on consumers. The legal system is complex. Addressing legal problems requires expert assistance. People are not well able to judge for themselves whether their lawyer or paralegal is actually competent. Of course, there is much that can be assessed by clients such as being a good communicator and being responsive. But clients can’t be confident whether the advice received is good and whether the results obtained are appropriate in the circumstances.

Economists talk about “credence goods”. These are goods (or services) where the consumers can’t really assess whether, and to what extent, they need the goods on offer. Ironically, the producer of a credence good assists the consumer in understanding what is needed from the producer– and the consumer can’t fully assess the quality of what is provided. Economists talk about information asymmetry between consumers and producers where credence goods are concerned. The bottom line is that markets don’t work effectively where consumers can’t judge the quality of services provided nor the true need for those services.

Licensing addresses this market failure by providing a signal to consumers that licensed professionals are sufficiently competent. Post-licensing regulation seeks to ensure that licensed professionals conduct themselves properly and don’t take advantage of information asymmetry by taking advantage of their clients.

The second part of the answer focuses on the legal system itself. The legal system depends on competent and ethical legal representation. Whether in disputes resolved by the adversarial system or in transactional matters, our legal system would be rendered ineffective (or worse) if clients who need expert assistance are provided inexpert or unethical assistance. It is commonly said that having incompetent representation is worse than having no representation at all. And having no representation can be highly problematic as the plight of the self-represented litigants shows.

None of this is to say that professional regulation is a panacea. One of the consequences of regulation is that prices tend to increase because competition is restricted by barriers to entry. And no regulation is perfect. There are many frailties and imperfections in professional regulation. But there is good reason to regulate lawyers and paralegals.

Consumer reviews and professional regulation

This description of the rationale for the regulation of legal services provides some background to for a discussion of a recent thoughtful commentary called Online Reviews as an Alternative to Professional Regulation? by Natasha Danson of Steinecke Maciura LeBlanc[1].

Ms. Danson looks at recent scholarship that considered the effectiveness of online reviews as a means of consumer protection. In the home improvement context, one study indicated that price and online reviews were the most important factors in consumer choice, that licensure information had no impact and that stringent licensing requirements resulted in less competition and higher prices but did not appear to affect customer satisfaction. In contradistinction, another study contended that online reviews were less useful in the selection of professional service providers and that a “a “co-regulatory or collaborative approach for the interaction between online reputational mechanisms and traditional regulation” was called for.

In her commentary, Ms. Danson suggests that regulators might consider establishing their own platforms to host online reviews or making complaints and discipline information publically available whether directly or through independent platforms.

There is much that is appealing about Ms. Danson’s suggestions. Her suggestions are not premised on a false “all or nothing” approach but rather recognize that there is value in the consumer perspective and a need to better inform consumers.

A collaborative approach?

It would be absurd and patronizing to think that clients are unable to make any useful assessment of the professional services that they receive. While there are inherent limits to client assessment, there is much about effective professional service that does not require expertise. By way of example, LawPro has long reported that legal errors are not the most common cause of liability claims against lawyers. As LawPro recently reported[2]:

Students in the midst of law school, with its mountain of reading on cases and substantive law, might be surprised to learn that “errors of law” are not the biggest pitfall to watch out for in the world of private practice. In fact, in the last ten years, only about 14 per cent of LAWPRO malpractice claims were caused by lawyers getting the law wrong (except in very complex areas like family or tax law).

So, if knowing the law isn’t the problem, what is the danger that new lawyers should be on the lookout for? In a nutshell, you could call it “human error”: breakdowns in communication, poor calendaring and procrastination, and not digging deeply enough into a client’s matter. These types of errors make up almost 67 per cent of the claims LAWPRO sees.

While clients may not be able to assess everything, clients have insight into the quality of communication and factual investigation, and into the diligence and timeliness of the work done on behalf of clients. To be clear, individual assessments may be wrong or ill-intentioned. But clients have something to say.

On the other hand, one of the reasons that professional regulators are called upon to investigate complaints is that effective assessment of complaints commonly requires the expertise of the regulated profession.

The point is that useful information can come from clients and some can come from professional regulators.

So why isn’t this all easy?

If we accept that potential clients would be better served by access to more information about lawyers and paralegals, and if we accept that clients and professional regulators have useful information then it seems to follow easily that such information should be assembled and publically disclosed.

However, it seems to me that there are several significant problems to be thought about. One problem is selection bias. Those who post online reviews and those who make complaints are not necessarily representative of clients generally. Happy clients don’t make complaints. And it seems likely that client with more extreme view are most likely to post online reviews. Another problem is that not all online reviews and complaints are made in good faith. Indeed, some are entirely fake. A third significant problem is that the complaints and discipline process itself might be adversely affected if called on to serve a consumer assessment purpose rather than to reactively regulate conduct.

Nevertheless, the market failure inherent in credence goods means that consumers need better information. Licensure serves that purpose. But licensure does not help consumers distinguish between licensees – and we all know that some licensees are better than other licensees. If we generally believe in markets and consumer choice then we should also recognize that markets are imperfect – that only “permitting” perfect information would be to frustrate the operation of any market. Consumers go to on-line platforms not because they expect perfect unbiased assessments but because the product of enough rankings/assessments provides useful information.

I’ve written previously about disclosure of investigative information as a counterpoint to the increase in potentially misleading brand advertising. My concern was that:

It is commonly difficult for prospective clients to obtain good information about lawyers and paralegals. The significant growth of brand advertising is cogent evidence of this. Potential clients assume that brand is evidence of quality when that may well not be the case. Substantial sums are paid for brand advertising because it works. Similarly, the advertising of dubious awards and reassuring photographs evidences that lack of genuine information about quality.

Ms. Danson’s focus on providing both consumer information and regulatory information to consumers is another way into the same issue. In my previous post, I suggested that there were ways that regulatory information might usefully be disclosed. I suggested that stale information might be excluded from disclosure and that only complaints that met a minimum threshold should be disclosed. I wrote that:

Perhaps the practical answer to concerns about disclosure of unfair or misleading information is careful focus on what should be disclosed. If there is only disclosure about investigated complaints which have led to a regulatory outcome then what would be disclosed would be the result of investigation and evaluation. Fear of disclosure of malicious or unfounded complaints would not be justified.

I continue to think that the regulatory process provides potentially useful information that is not now available because, currently, only authorized prosecutions are publically disclosed.

And there is a further advantage to greater transparency namely public confidence. Of the thousands of complaints that are made to the Law Society each year in Ontario, few ever are seen by the public to have a regulatory impact. While the public can learn about the one hundred and fifty or so discipline cases that are prosecuted annually, better transparency with respect to other regulatory outcomes could reassure the public that professional regulation is actually being done and that the quality of this credence good is enhanced by professional regulation.

Almost all agree that professional regulation should seek to ensure minimum standards of competence and conduct through traditional regulatory approaches. Most also support encouraging better and best practices through modern proactive regulation. The point of this column is that providing information about legal services is a further valuable contribution that can be made so that consumers can make better choices, so legal services markets can be more effective and so that public confidence in legal services can be enhanced.

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[1] Grey Areas: A Commentary on Legal Issues affecting Professional Regulation, February 2020, Issue no. 243

[2] Common practice pitfalls: And how to avoid them, February 26, 2020 by LAWPRO

I recently attended part of RODA’s 5th Annual Diversity Conference which was entitled Resilience in Challenging Times. I was particularly interested in hearing the panel Building Consensus: The Future of EDI at the LSO. There were four panelists; two from the Stop the SOP slate and two who had been members of the Law Society Challenges Task Force.

The context for the panel appeared to me to be intentionally post-Statement of Principles, to address questions beyond the debate about compelled speech and belief. Perhaps not surprisingly, there was little if any consensus and little apparent attempt to find any.

This column is an attempt to reflect on issues that continue to be contentious despite the Statement of Principles requirement having been replaced by a requirement to acknowledge human rights obligations under the Rules of Professional Conduct.

Talking to Strangers

In a recent podcast by Ezra Klein, there was a discussion with Professor Danielle Allen who directs Harvard’s Edmond J. Safra Center for Ethics. Professor Allen is described as a political theorist, and a philosopher, and the principal investigator of the Democratic Knowledge Project. She is the author of Talking to Strangers[1] written in 2004 which focuses on interracial distrust in the United States. Her discussion with Ezra Klein was about the importance of democracy as a core value.

In her prologue in Talking to Strangers, Ms. Allen says that “Within democracies, … congealed distrust indicates political failure. At its best, democracy is full of contention and fluid disagreement but free of settled patterns of mutual disdain. Democracy depends on trustful talk among strangers and, properly conducted, should dissolve any divisions that block it.”

Ms. Allen talks about the concept of political friendship, not in the sense of “buddy movies” as she puts it, but rather as a form of citizenship supportive of equal human dignity and the protection of liberty.

She writes:

Political friendship begins from this recognition about what we share with the people who live around us and in the same polity. It moves from this recognition of a shared horizon of experience not to a blind trust in one’s fellow citizens but rather to a second recognition that a core citizenly responsibility is to prove oneself trustworthy to fellow citizens so that we are better able to ensure that we all breathe healthy air. But in order to prove oneself trustworthy, one has to know why one is distrusted. The politics of friendship requires of citizens a capacity to attend to the dark side of the democratic soul.

There is power to the language and concept of “the dark side of the democratic soul” and to the idea that “one has to know why one is distrusted”. We are all skilled at knowing why we distrust the “other”. Contempt for the “other” is all too easy. What is hard is a genuine attempt to explore and understand the perspective of the “other” whatever that may turn out to be.

In the podcast, Danielle Allen talks principally about democracy and the practice of democracy. Her approach is full-throated celebration of democracy. As she puts it, she considers that democracy is the “single best political form available to human beings for maximizing human empowerment and permitting every person to develop to their full potential”.

Equal human dignity, the protection of liberty and democracy

A charitable understanding of contemporary debate is to see a contest between equality and liberty with different weightings of each value by different people. On one side, there is a belief that there are unacceptable inequalities and that there is no real liberty interest in opposition to righting those wrongs. On the other side, there is a belief that that human liberty ought not to be diminished in order to address what are said to be relatively insignificant breaches of equality.

Of course, it is a trivialization to say that all that is in play is a competition of values. Perspective matters as well as values. How one has been affected and what one has seen affect assessments of impairment of liberty and impairment of equality and of their relative importance. And it would be foolishly naïve to assume that everyone attempts to approach hard issues with a good faith values based approach without self-interest or bigotry. And there are not just two core values in play.

What I take from Danielle Allen is the need to understand what may motivate a good faith view that is different from one’s own and what it is about one’s own beliefs that offends the other and why. Ms. Allen would not say that one shouldn’t assess and evaluate the views of others but rather that that it is often necessary to do hard work before coming to conclusions.

Ms. Allen’s approach is not naive nor a descent into relativism. She is clear that there are fundamental human rights that are not negotiable and that may not be sacrificed. I do not think that she would say that anyone should have to suffer or debate attacks on their humanity. But her position is that we too often perceive important political issues as being incapable of legitimate democratic difference.

Finding consensus and finding difference

Returning to the RODA panel Building Consensus: The Future of EDI at the LSO, it seems to me that the panel was doomed for more than one reason. The first simple reason is that most of the panelists weren’t there to find consensus. The second reason is not so simple but is, I think, important. While finding points of consensus can be valuable, what is missing is identifying the true points of difference and trying to understand the basis for the differences. Treating democracy as a true third value requires a good faith attempt to understand difference before, where appropriate, standing by the disagreement and concluding that the adverse position is being worthy of distain.

Limited common ground

To start with areas of common ground, no one argues that intentional discrimination is acceptable. Whatever may be believed, no one says that acceptable professional conduct includes intentional discrimination on prohibited grounds.

The role of the Law Society

There is sometimes a suggestion that the Law Society as regulator has no business dealing with intentional discrimination and that this ought to be left to the Human Rights Tribunal. When argued, this appears to be on the basis of a minimalist view of legal ethics and professional conduct. An implication of this approach would be that the Law Society ought not to address criminal, dishonest or criminal conduct as being professional misconduct but rather should leave such matters to the criminal law. No one takes this view. But some seem to think that the Law Society should not act if, for example, lawyers elect not to serve clients based on a prohibited ground such as race. It seems to me that what must explain this inconsistency is that some do not see freedom from discrimination as being a fundamental human right. That would explain treating intentional discrimination as something that is marginal to or outside of professional conduct. If there is another reason to see intentional discrimination as a professional as being wrongful but not properly part of Law Society regulation, I am missing it.

Systemic Discrimination

Once we get past intentional discrimination, we start to get past general consensus and to get to differences. The phrase “systemic discrimination” seems to be a flash point. In debate, it seems commonly to be said (with degrees of outrage) that claims of systemic discrimination must be false and are offensive because a claim of systemic discrimination is a claim of intentional impropriety. I’m not always sure whether this is a genuine concern or a way of attacking the concept by way of a straw-person argument.

The concept of “systemic discrimination” in Canadian law is not new. Over thirty years ago, Chief Justice Dickson for the Supreme Court of Canada stated in Action Travail des Femmes v. Canadian National Railway Co., [1987] 1 S.C.R. 1114 at pp. 1138-39 that (emphasis added):

In other words, systemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces, for example, that women “just can’t do the job” (see the Abella Report, pp. 9-10). To combat systemic discrimination it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.

Saying that there is systemic discrimination is not to say that anyone intends to discriminate. Systemic discrimination is about the effect of established procedures and is not about whether that effect is intended. Of course, intended discrimination is morally worse so far as the actor is concerned. But intention is not a necessary element of systemic discrimination which focuses on the person suffering discrimination.

To repeat what the Supreme Court of Canada said over three decades ago “To combat systemic discrimination it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged”.

It may simply be that the phrase “systemic discrimination” is heard as being a moral castigation instead of the description of a problem. But the essential point is that systemic discrimination refers to effects, not intentions.

Viewed as a practical problem, systemic discrimination seems to me to refer to a state of affairs in which a system (usually hiring, promotion, termination etc.) operates to the advantage of some and to the disadvantage of others without intent necessarily playing any part. On this basis, systemic racism exists where a system operates to the disadvantage of those of a particular “race” – and therefore to the relative advantage of those not of that race.

It seems obvious to me that there is systemic discrimination in the practice of law. There seems to be ample evidence that human beings deal differently with those “like them” than with those “unlike them”. This makes practical sense. People who are ”like me” are more likely to share cultural values and norms. Those from my “community” should be more likely to help me given the greater prospect of a shared community and shared interests. It may be harder work to deal with those who are not “like me”.

There seems to be little dispute that where there is a dominant group, whether by gender, race, ethnicity or otherwise, those of the dominant group or “in group” have an inherent advantage in joining and succeeding with members of that group. While not everyone accepts that “in group” and “out group” behavior exists and matters in real life, most seem to do so.

To take this point further, there is the separate problem of stereotyping. It is not just that “in groups” treat other members of their “in group” differently than members of the “out group”, there are prejudicial differences between how different “others” are perceived. To be blunt, it is clear that there is greater prejudice against black people, for example, than against some other groups. In saying this, I don’t mean to say that this prejudice is necessarily intentional. The problem is that we all make many decisions in our lives on an intuitive basis without always recognizing why we react as we do.

Is there a problem?

The next strong difference seems to me to be around the significance of this problem. While a generalization, it seems to me that it is mostly members of dominant groups who suggest that members of dominant groups don’t much act this way. This is no great surprise. We all tend to think well of ourselves and generally want to do the right thing as we understand it. It isn’t easy to accept that one’s choices may be unintentionally unfair. If one has not experienced discrimination, it is harder to perceive discrimination. We all like to think that we have fully earned our successes. It can be threatening to be told that one’s success may not be fully earned.

But things get better

There is another point which is made as to the significance of both direct and systemic discrimination, namely that there may well be problems but that such is the human condition and that things have improved and will improve over time. Our modern era is said to be similar to recent past times where new groups have become part of the legal mainstream. There is truth to this. There are a number of groups that were previously the subject of discrimination. That said, it seems wrong to accept current injustice simply because it seems that injustice may well diminish on its own. I take the example of Bora Laskin who could not find employment in private practice in the 1930s because he was Jewish. By the 1965, he was appointed a judge of the Court of Appeal for Ontario (although the Rideau Club in Ottawa had only then just started to allow Jewish members[2]). I do not think that it would have been appropriate to respond to the reality of anti-Semitism in legal practice by saying that things will work out, as they mostly have over time. And it is fair to observe that injustice has diminished much more slowly for members of some groups than for members of other groups.

Look only to merit

Some say that it is wrong to apply any test other than merit, that looking scrupulously at merit will overcome prejudice over time and that looking at “identity” at all, rather than solely at merit, is illiberal and problematic. This is the logic that founds claims of reverse discrimination. It has moral power because it calls in aid inherent human dignity and the importance of looking at each person as a person rather than as a member of some group.

The first response is that the point assumes that the status quo is fair assessment of merit. But if there is a “in-group” and unconscious bias then this is not so. This does not necessarily mean intentional discrimination on prohibited grounds.

It is clear in my experience that the children of successful lawyers have a number of advantages. One advantage is that those responsible for hiring will tend to assume that a child is more likely to be successful if a parent has been successful. This is true at the individual level (i.e. where a parent is a well-known successful lawyer) but this also operates at a more general level (i.e. where a candidate for hiring has had life experiences that signal having come from a successful family). This advantage obviously accrues to established “in-groups” and, without malicious intent, can operate to disadvantage on the basis of prohibited grounds.

At another level, there is the issue of unconscious bias. This is the idea that we all make intuitive judgments. There is now a rich literature discussing intuitive or heuristic decision making and the common human errors that arise from such decision-making. Daniel Kahneman[3] is one of the best known writers and thinkers on this topic. In our context, the problem is that we all make intuitive decisions based on experienced patterns and that existing patterns tend to support the status quo. We intuitively see as meritorious those who are “like” those who are currently successful. In addition, we tend to like and trust those who are like us and to be less inclined to favour those who are different from us. None of this is necessarily intentional or evil, just human nature.

There are some who simply dismiss the existence of unconscious bias. There are others who accept that unconscious bias exists but cite research suggesting that unconscious bias cannot be overcome. I’m inclined to accept that unconscious bias may not be capable of elimination but think it wrong to end the analysis at this point. An essential point made by Kahneman is that we have two cognitive processes. The first is “fast” and intuitive, driven by perceived patterns through heuristics. The second is “slow” and deliberative. The two processes may be thought of respectively as being intuition and reasoning. I think that this is one of the reasons that writing reasons is important in adjudication as writing reasons requires “slow” and deliberative thinking to overcome errors in intuitive reactions. Hence, the idea that a first reaction to something simply “won’t write”.

It seems to me that there ought to be common ground around the idea of ensuring non-intuitive deliberative approaches to hiring, promotion and termination in legal practice. For those who accept the idea of unconscious bias, conscious reasoning is a logical correcting approach. For those who doubt that unconscious bias exists, it should be hard to be against thoughtful reasoning.

As a further level, there is the question of what is meant by merit. Merit may simply be a way of generally describing attributes that predict success. If so, it seems clear that being “like” those who are already successful is a good predictor of being successful. Amazon’s attempt to use artificial intelligence to help in hiring decisions makes this clear[4]. The problem is that there is an assumption that it is possible to fairly assess some underlying human attributes or skills that make one person more worthy (i.e. meritorious) than another. I don’t claim that there is nothing to “merit” but rather than “merit” is not as simple as it seems. And there is the further point that “merit” is likely not one single thing and that recognizing different strengths may be a better reflection of human dignity and worth. And recognizing that we live in a diverse society, the ability to effectively understand and serve different populations is an element of merit.

At a deeper and most difficult level, there is the fact that “opportunity” is not fairly distributed in society generally. For example, Black children are disproportionately in foster care and in lower academic streams[5]. Similarly, Black men more often interact with the justice system at all levels of society[6]. The intergenerational harm suffered by Indigenous people is now well known. Earlier discrimination and resulting social and economic difference can give rise to different abilities subsequently. “Neutral” equality of opportunity at hiring, for example, fails to deal with prior inequality of opportunity. Making “pure” merit-based employment decisions does nothing to address prior inequity.

The role of the Law Society beyond issues of direct discrimination

It should be understood that the LSO Rules of Professional Conduct now require that lawyers not discriminate in the provision of services or in their employment practices on prohibited grounds.

Rules 6.3.1-1 provides that:

6.3.1-1 A lawyer has a special responsibility to respect the requirements of human rights laws in force in Ontario and, specifically, to honour the obligation not to discriminate on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences (as defined in the Ontario Human Rights Code), marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person or in professional dealings with other licensees or any other person.

6.3.1-2 A lawyer shall ensure that no one is denied services or receives inferior service on the basis of the grounds set out in this rule.

6.3.1-3 A lawyer shall ensure that their employment practices do not offend rule 6.3.1-1, 6.3.1-2 and 6.3-3.

While some suggest that the Law Society ought not to address direct discrimination, I do not think many take that view. Section 33 of the Law Society Act requires that lawyers and paralegals not engage in professional misconduct or conduct unbecoming a licensee.

But what about unintentional failures to hire, promote and terminate without bias on prohibited grounds? And what about unintentional failures to provide equal opportunity to grow and flourish? For those who deny that this failures happen in any meaningful way, the following discussion is of limited relevance. But even if it is accepted that there is a problem of unintentional discrimination, not everyone accepts that the Law Society has a proper role.

I start by observing that Canadian human rights law does not only protect against direct discrimination.

Part I of the Human Rights Code establishes freedom from discrimination including sections 1 and 5(1):

1 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Section 11(1) addresses constructive discrimination providing that:

11 (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

Over twenty years ago, the Court of Appeal for Ontario held in Ferrel v. Ontario (Attorney General of) (1998), 42 OR (3d) 97 that:

… systemic discrimination relating to employment was, before the enactment of the 1993 Act, and still is, prohibited by the Human Rights Code … Every individual has the right not to be systematically discriminated against in relation to employment ….

There is no doubt that Ontario human rights law does not stop at intentional discrimination. There is no doubt that Ontario law prohibits constructive (i.e. systemic discrimination) irrespective of intent.

So the simple question becomes whether the Law Society has jurisdiction to address systemic discrimination or whether the Law Society must leave systemic discrimination to the Human Rights Tribunal[7]. I do not see a rationale for the conclusion that intentional discrimination on prohibited grounds should be properly treated as professional misconduct while a breach of human rights law by systemic discrimination should not be treated as professional misconduct.

In my view, the decision of the majority of Supreme Court of Canada in Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 (“Trinity Western”) clearly establishes that the Law Society of Ontario properly addresses discrimination in the legal workplace. The majority held in Trinity Western that (emphasis added):

 [21] To begin, it is inimical to the integrity of the legal profession to limit access on the basis of personal characteristics. This is especially so in light of the societal trust enjoyed by the legal profession. As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions (see Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at para. 47).

[22] As well, eliminating inequitable barriers to legal training and the profession generally promotes the competence of the bar as a whole. The LSUC is not limited to enforcing minimum standards with respect to the individual competence of the lawyers it licenses; it is also entitled to consider whether accrediting law schools with inequitable admissions policies promotes the competence of the bar as a whole.

[23] The LSUC was also entitled to interpret the public interest as being furthered by promoting a diverse bar. Access to justice is facilitated where clients seeking legal services are able to access a legal profession that is reflective of a diverse population and responsive to its diverse needs. Accordingly, ensuring a diverse legal profession, which is facilitated when there are no inequitable barriers to those seeking to access legal education, furthers access to justice and promotes the public interest.

The majority of the Supreme Court of Canada has held that the Law Society properly addresses equality and human rights, competence and diversity within the profession in a decision to accredit a law school. A fortiori, the same must be true matter of law in the regulation of the professional conduct of lawyers and paralegals. Said simply, compliance by lawyers and paralegals with their human rights law obligations in legal workplaces is undoubtedly, in my view, properly addressed by the Law Society as a matter of regulation of professional conduct.

The necessary implication of this conclusion is that the Law Society’s work to better ensure that legal workplaces are free from both intentional discrimination and systemic discrimination, intentional or not, is fully justified. It is, of course, always open for debate what measures are best suited to address discrimination within the professions. But that is different from concluding that there is no such discrimination or that there is no proper role for the Law Society.

Where I think there are more serious questions to be addressed is with respect to discrimination suffered prior to becoming a lawyer or a paralegal. For society as a whole, equality of opportunity matters and must be addressed from the beginning of everyone’s life. But what about for the legal profession and its regulator?

In Ontario, the Law Society is charged with carrying out its responsibilities with duties to “maintain and advance the cause of justice”, “act so as to facilitate access to justice for the people of Ontario” and “to protect the public interest”[8].

It seems to me that these duties justify addressing discrimination on prohibited grounds suffered prior to licensing as well as after licensing on the basis that doing so generally advances the cause of justice and the public interest. More specifically, it seems to me that a fundamental goal of regulation of the legal professions is to better ensure an administration of justice that supports a democratic society through peaceable and effective resolution of disputes. This is, I think, what the majority was talking about in Trinity Western when they said that “Access to justice is facilitated where clients seeking legal services are able to access a legal profession that is reflective of a diverse population and responsive to its diverse needs”.

None of this is to suggest that what ought to be done with respect to discrimination suffered prior to licensing is easy or obvious. But I believe that addressing and ameliorating prior discrimination is not mere irrelevant “politics” or “ideology” as some seem to claim.

Where does this take us?

I have argued in this column that we should seek to both find consensus and to clarify difference. Finding consensus allows us to move forward at least in some respects.

Finding difference allows all of us to better assess whether differences can be resolved through better understanding. And where differences cannot be resolved, understanding differences assists in understanding other legitimate philosophical perspectives – as well as clarifying where there is unacceptable difference[9].

As a tentative list, I suggest that it would be useful to determine whether there is consensus or difference in respect of the following propositions:

1. Intentional discrimination on prohibited grounds occurs within the legal professions
2. It is often difficult to show that there has been intentional discrimination on prohibited grounds. Those who intentionally discriminate generally know better than to announce their misconduct.
3. Well intentioned lawyers and paralegals make decisions in their workplaces that cause unfair advantage and unfair disadvantage on prohibited grounds without being aware that they are doing so.
4. Systemic discrimination is not about discriminatory intentions. It is about discriminatory effects.
5. Systemic discrimination (i.e. indirect or constructive discrimination) on prohibited grounds occurs within the legal professions
6. It is appropriate for the Law Society to require lawyers and paralegals to take reasonable steps to address the following in legal workplaces:
   1. intentional discrimination on prohibited grounds;
   2. unintentional discrimination on prohibited grounds; and
   3. systemic discrimination on prohibited grounds.
7. The Law Society properly addresses intentional discrimination on prohibited grounds as professional misconduct.
8. The Law Society properly addresses systemic discrimination on prohibited grounds as professional misconduct.
9. The Law Society properly uses regulatory tools, other than just discipline proceedings, to reduce and mitigate intentional, unintentional and systemic discrimination.
10. It is appropriate to assess the demographic results of employment processes and the experiences of lawyers and paralegals in legal workplaces in order to help discover and address prohibited discrimination, whether intentional or not.

_______________________

[1] The full title of Ms. Allen’s book is Talking to Strangers: Anxieties of Citizenship since Brown v. Board of Education

Malcolm Gladwell has recently released his new book also called Talking to Strangers: What We Should Know about the People We Don’t Know. The two books should not be confused.

[2] Robert Fulford, The 1960s, when Canadian Jews found acceptance

[3] Kahneman is a Nobel laureate in economics for his work in behavioural economics and the author of Thinking, Fast and Slow, published in 2011

[4] Amazon scraps secret AI recruiting tool that showed bias against women

[5] Based on the 2016 Census of Canada and other recent studies, OCASI (the Ontario Council of Agencies Serving Immigrants) reports that “Black students were only 12% of the Toronto District School Board student population but represented 48% of all expulsions. In 2015, the Toronto District School Board (TDSB ) reported that 53% of Black students, compared to 81% of White students, were enrolled in Academic programs of study”. Black Canadians in Toronto are “reported to constitute 8.5% of the population, but 40% of the children in care”.

[6] OCASI reports that in 2016 40% of inmates in segregation at the Toronto South Detention Centre were Black, but they are only 7.5% of the Toronto population. See also information reported by the John Howard Society including that an analysis of 10,000 arrests in Toronto showed that “Blacks were 50% more likely to be taken to a police station for processing after arrest, and 100% more likely to be held overnight than were whites, even taking into account criminal history and age” and that “Blacks are over represented in federal prisons by more than 300% vs their population, while for Aboriginals the over representation is nearly 500%”.

[7] Commentaries 11 and 12 to Rule 6.3.1-1 make clear the Rules of Professional Conduct now prohibit direct and indirect discrimination on prohibited grounds.

[8] Law Society Act, s. 4.2

[9] As Ms. Allen puts in in the podcast “we should try to ascertain what is the picture of human good or human value that motivates this other person even though it results in an action that we think is abominable”.

It is no secret that that self-regulation can be compromised by the tension between the public interest and the interest of the regulated profession[i]. This tension leads some to say that self-regulation is inherently flawed and should come to an end.

In this column, I suggest that:

• it may be useful to recognize that conflicting professional interests are more in tension in some areas than in others and accordingly to look for ways to mitigate that tension where it is potentially problematic
• there may be limited measures that can be used to mitigate such tension without having to take more transformative measure that may or may not end up achieving what is sought to be achieved and to avoid the costs that come with transformations.

Where the public interest and the interests of the profession mostly align

As is generally understood, Canadian Law Societies have the responsibility of determining:

• what is required to obtain a license to practice law and to license lawyers
• what professional conduct and competence is required from lawyers and taking steps to encourage and ensure compliance
• whether a lawyer has breached their professional obligations and, if so, the consequences for that breach
• whether a lawyer lacks required capacity to practice and, if so, what ought to be done
• appropriate public protection for errors and omissions and for fraudulent or dishonest conduct[ii]

Law Societies have other responsibilities as well[iii] but the above are some of the main regulatory responsibilities.

The Law Society of Ontario is responsible for paralegals as well as for lawyers. The responsibilities set out above apply just as well to paralegal regulation as to lawyer regulation. For example, the Law Society of Ontario determines what is required to become a licensed paralegal. While there are of course different requirements for lawyers and paralegals, the Law Society of Ontario determines and applies licensing requirements for both professions.

Indeed, the list of responsibilities set out above is a pretty standard list for professional regulation. For lawyers, paralegals, doctors, nurses, engineers, architects, real estate brokers, and others, the professional regulator is responsible for entry into the profession, conduct, competence and capacity in practice and, often, public protection against negligence and dishonesty.

In these areas, the public interest and the interest of the profession are substantially aligned. Generally speaking, practicing professionals support requirements ensuring professional competence (at licensing and in practice), professional conduct and capacity[iv]. Most Canadian lawyers appear to support mandatory errors and omissions insurance and there are cogent arguments that mandatory insurance is both in the interest of clients and professionals. It is arguable that protecting clients against dishonest professionals through a compensation fund is not so clearly in the interest of the honest professionals who end up paying for the dishonesty of a small minority. But such compensation has generally not been controversial.

Where the public interest and the interests of the profession align less well, if at all

Professional regulators have other responsibilities where the public interest and the interests of regulated professionals are less well aligned. Scope of practice is an area of particular tension where there is more than one profession that may be suited in the public interest to perform a function.

Medicine, nursing, midwifery and dentistry provide an example outside of the legal context. Physicians and surgeons have long argued against expansion of the scope of authorized practice of nurses, midwives and dentists. And nurses, midwives and dentists of course argue that they should be allowed to do certain work that has been reserved to physicians and surgeons. In Ontario, the same is true for lawyers and paralegals. Paralegals argue for and lawyers argue against increased scope of paralegal practice. If and when new types of licensed legal service providers are proposed, there will likely be tensions between the public interest and the existing professions.

Establishing appropriate scopes of professional practice in the public interest is no easy matter and that the views of the professions provide important input. But it is clear that self-interest plays an important part in the positions that are taken even if the arguments made are framed and genuinely thought to be made in the public interest.

There is a clearly tension between the public interest and the interest of professions where two or more professions would compete for work if permitted to do so.

A very similar area of tension between the public interest and the interest of the profession arises where the regulator has the authority to determine whether unlicensed persons can provide services or whether all providers must be licensed.

There are other areas where the public interest and professional interests also may not be well aligned as in the areas of competence, conduct and capacity. Advertising is one such area. Since the Supreme Court of Canada decided Rocket v. Royal College of Dental Surgeons of Ontario[v], professional regulators have been required to take into account and balance competing principles.

The Supreme Court made clear that “promoting professionalism and preventing irresponsible and misleading advertising on matters not susceptible of verification” are proper regulatory objectives. On the other hand, “[t]he public has an interest in obtaining information as to [the professional’s] office hours, the languages they speak, and other objective facts relevant to their practice”.

What is not necessarily obvious is that there are divided interests within the professions on issues such as advertising. Some professionals have well established reputations. Some do not. Some have the financial resources to purchase significant advertising. Some do not. Many professionals see advertising as involving escalating competition, sort of an advertising arms race. Some professionals see advantage in advertising. Some see disadvantage.

Where the professional regulator addresses competition for work, the public interest, the interest of the profession and interests within the profession may not be well aligned.

The common thread is the threat of competition between professions, within professions, from alternate service providers and from others. The appropriate nature and extent of competition that is in the public interest is a challenging policy question. The interests of those who would face increased competition are not necessarily well aligned with the public interest.

The point being made is that the interests of the profession and of professionals are most likely not to be fully aligned with the public interest where competition is affected by professional regulation[vi].

Areas where competition is mostly directly affected are with respect to scope of practice, if any, of competing professions, decisions determining what activities are reserved to licensed professionals and decisions which affect the extent of competition within a profession. These areas could be described as determining scope of practice, determining the scope of reservation[vii] and regulating of business activities.

Approaches to regulation in the public interest

There are, broadly speaking, four common approaches to regulation of the legal profession namely self-regulation, co-regulation, “independent” regulation and judicial regulation.

The Canadian approach to professional regulation is mostly self-regulation[viii]. Authority is given by legislation to a professional regulator whose directors are mostly elected by members of the regulated profession. Some professional self-regulators regulate more than one profession and accordingly a number of directors are elected from each profession[ix]. Self-regulation in Canada is not pure self-regulation. To greater and lesser extents, some directors are appointed by government[x].

In some jurisdictions, there is co-regulation of lawyers by government agencies in some respects and by the profession, through its representatives, in others. Australian provides an example of co-regulation[xi].

In most of the United States and, to some extent, the judiciary is responsible for regulation of lawyers. In what appears to be tacit co-regulation, the American Bar Association (a representative organization) develops the Model Rules of Professional Conduct which are adopted by the judiciary in most states.

England & Wales provides an example of what is intended to be independent regulation. There are “front-line” legal regulators for solicitors, barristers, legal executives, licensed conveyancers, patent and trade-mark attorneys, costs lawyers, notaries and accountants (in respect of probate activities). These “front line” regulators are themselves under the authority of the Legal Services Board which is described as an oversight regulator.

The “front line” regulator for English solicitors is the Solicitors Regulation Authority (the SRA). The board of directors of the SRA consists of 13 members, six solicitors and seven lay people (one of whom chairs the Board). Board appointments are made by an appointment panels based on merit and established criteria taking into account required skills/experiences and the principle that the board should broadly reflect the regulated community and consumers of regulated services. One of the members of the appointment panel is from the representative of the profession. Another is an existing member of the board who is not eligible for reappointment. A chair is of the panel is selected who is independent of and external to both the representative of the profession and the SRA.

In Québec, the regulation of lawyers and notaries may be thought of as being a form of co-regulation. Lawyers are regulated by the Barreau du Québec. Notaries are regulated by the Chambre des notaires du Québec. The majority of the council of the Barreau is elected by lawyers but one-quarter of the Council are public representatives nominated by l’Office des professions. The l’Office des professions supervises 46 “professional orders” including the Barreau.

Reasons for change in regulatory approach

The approaches taken to regulation of lawyers in Australia and in England & Wales have changed significantly.

In England, significant change came with the adoption of the Legal Services Act 2007 which sought to establish independent legal regulation. Significantly, prescribed regulatory objectives included “protecting and promoting the interests of consumers of legal services” and “promoting competition in the provision of legal services”.

The Legal Services Act 2007 followed from the review by Sir David Clementi of the regulatory framework for legal services in England and Wales on behalf of the government. The Clementi Report was delivered in December 2004. Notably, Clementi’s terms of reference focused on considering “what regulatory framework would best promote competition, innovation and the public and consumer interest in an efficient, effective and independent legal sector”.

The appointment of David Clementi has broadly been understood have arisen from two main issues. The first was the perceived anti-competitive aspects of self-regulation. The second was the perceived failure of the self-regulator to sufficiently address professional misconduct.

In Australia, regulatory changes came earlier but for similar reasons. As described by Chief Justice Spigelman of the Supreme Court of New South Wales[xii], Australian reforms starting in the 1990s were driven by “application of competition principles to the legal profession”.

In Australia and in England & Wales, concerns about protectionism and anti-competitive activity led to the end of self-regulation.

Thoughts about self-regulation and professional self-interest

There is no perfect approach to professional regulation. Professional self-regulation has advantages. It is a challenge without professional expertise to truly address the fundamental aspects of professional regulation; namely professional competence and conduct. It is good to have regulation of lawyers be independent of government both in criminal law defence and generally. In the early days of the Trump administration, lawyers gathered at airports seeking to defend the interests of those seeking to enter the United States. It is not difficult to imagine that regulation of lawyers by the US government might have cast a pall. Whether a government is on the right or the left, independence from government is desirable. We know that autocratic countries around the world use state “tools” to silence lawyers.

In my view, it is particularly important that the question of what is required to become a lawyer and requisite professional conduct and competence of lawyers be independently regulated. Self-regulation is one approach to independent regulation. A difficulty with other approaches to independent regulation is that true independence from the state is both hard to achieve and hard to maintain.

As for ensuring professional conduct, it seems to me that the Canadian approach works well. The reality is that investigation of possible misconduct, determination of appropriate regulatory responses and prosecution of alleged misconduct is the responsibility of Law Society management. Other than authorizing prosecutions[xiii], these core regulatory functions are exercised independently from elected and appointed benchers but in accordance with established conduct rules and policies. While those unfamiliar with Law Society processes sometimes think otherwise, the reality is that this aspect of regulation is not compromised by conflicting professional interests. This is not to say that things always work as well as they should. There is room for improvement as is true for all human institutions.

Practice by “non-lawyers”

It seems to me that the tension is greatest for self-regulation of lawyers in determining the permitted scope of licensed non-lawyer practice, determining the scope of reservation to licensees (i.e. what is unauthorized practice) and regulating of business activities.

This tension was seen in the debate in British Columbia about licensing paralegals to provide family law legal services. At the December 2018 LSBC Annual General Meeting, over 1,000 lawyers attended. 861 lawyers voted in favour of an anti-paralegal resolutions, 297 voted against and 62 abstained, despite the BC Attorney General pushing through legislative changes to permit licensed paralegals. It would be naïve to think that lawyers running for election as benchers in BC will not understand that a significant number of electors are against paralegal practice.

The same tension can be seen in Ontario. In the last bencher election, some lawyer organizations sought commitments from candidates against paralegal scope of practice before providing their endorsements. Some lawyers campaigned for lawyer votes on anti-paralegal platforms. And paralegals campaigned for election on the basis of increased scope of paralegal practice. When the Law Society of Ontario has addressed paralegal scope, many lawyers and lawyer organizations have argued for reduced paralegal scope and against expanded scope. Not surprisingly, paralegals and their organizations express support for broader scope and oppose reduced scope. Every organization asserts that their position is in the public interest. And each acknowledges that its role is to advocate in the interests of its members.

In Ontario, there is a degree of protection put in place by the Law Society Act in light of the larger number of lawyer benchers (40 lawyers) as compared to the smaller number of paralegal benchers (5 paralegals). The Paralegal Standing Committee is comprised by statute with five paralegals, five lawyers and three government appointed benchers. Neither profession controls the Paralegal Standing Committee. But on most matters, Convocation is the ultimate decision-maker with paralegals being only 5 of 53. So far, in my view, Convocation has acted responsibility to make joint self-regulation work properly. As compared to BC, the presence of paralegals in Convocation and the existence of unregulated paralegals in Ontario prior to paralegal regulation in 2017 has likely assisted by forcing the two professions to deal with each other. While there are tensions, so far so good. But that could change.

Scope of reservation

In my view, there is a greater problem in Ontario with the scope of reservation (i.e. unauthorized provision of legal services). The definition of legal services under the Law Society Act is exceedingly broad. The Law Society is authorized to determine which legal services must be provided by licensees (and the classes of authorized licensees) and which legal services may be provided by unlicensed persons. Currently, lawyers may provide any legal services. Paralegals may act as advocates in tribunals and, in some respects, in the courts[xiv].

It is not well recognized that (i) the Law Society has authority to permit non-licensees to practice law or provide legal services to the extent thought appropriate[xv] and (ii) the Law Society has authority to establish new classes of license beyond lawyers and paralegals[xvi].

Where there is a tension between two professions about scope of practice, there is pressure for change. Such is the case in Ontario between lawyers and paralegals.

But where no one other than a lawyer is permitted to provide legal services, there is rarely anyone to advocate for change. Outside of dispute resolution, there are legal needs in Ontario that are unserved or underserved but where there is no one pushing for new licensed or unlicensed providers. To the extent that lawyers do not serve legal needs, a self-regulator has difficulty perceiving needs that are not being well served.

Several years ago, I said that[xvii] “It seems to me inevitable and proper that new ways of providing legal services will be allowed in unserved and underserved areas. Whether Canadian law societies are up to the challenge of allowing this is unclear. But if they don’t, someone else will.” I’m now less sanguine about this as there is limited pressure and incentive for a legal services self-regulator to open up areas where lawyers and paralegals don’t practice.

Regulating of business activities

I won’t comment further about issues such as permitted business structures, advertising, contingent fees, referral fees and the like other than to observe that these areas raise both important public interest issues and the economic interests of the professions, in terms of competition within and between the professions and in terms of profitability within the professions.

So what?

There is talk of the end of self-regulation in Canada. Experts in professional regulation argue that there is growing governmental and public impatience with self-regulation and that self-regulation is inherently fundamentally flawed given conflicting interests.

I don’t say that there aren’t problems to address. But there is a serious “baby and bathwater problem” to consider. In my view, it is difficult to realistically see long-term true independence from the state absent self-regulation or judicial regulation. “Independent” regulation through self-perpetuation[xviii] risks leading to regulatory capture by someone or something. But there is in any event an accountability problem inherent in independence by self-perpetuation. I accept that there may be collections of institutional actors[xix] who might reduce the risk of regulatory capture but the accountability issue remains.

Perhaps the better choice is evolutionary rather than transformative. Approaches in other jurisdictions always look better than our own and better than they are. And transformative change is difficult to effect and to manage. Results of transformative change are inherently unpredictable.

It may be useful to focus on where there is the greatest issue with self-regulation which, in my view, is in determining scope of practice for non-lawyer licensees, determining the scope of reservation to licensees and regulating of business activities.

An alternative that appeals to me comes in part from the Legal Services Board in England & Wales where a Consumer Panel has been established to advocate for consumer interests and in part from the existence of government appointed benchers in Canadian Law Societies.

Perhaps government appointed benchers could act as a formal sounding board for Law Society benchers and taken on something of the role of the English Consumer Panel in advocating for the public interest in areas of tension.

A more directive approach might follow the approach taken under the Law Society Act (Ontario) to the establishment of a tri-partite Paralegal Standing Committee. A tripartite panel or a panel of non-licensee benchers could be used to establish a check on Convocation within the Law Society on issues where the interests of the professions and the public interest are in tension.

Something to think about.

____________________

[i] See Conflicted Regulation in the Public Interest

[ii] In other words, mandatory insurance and compensation funds

[iii] In Ontario, dealing with unclaimed trust funds is an example

[iv] Regulatory scholars say that professionals tend to seek higher standards than justified in the public interest as a barrier to entry and thereby to the ability to charge higher fees

[v] Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 SCR 232

[vi] This would be starkly true if professional regulation included regulation of the numbers entering professional practice. There is some risk of competitive issues arising in establishing the criteria for entry to practice. Where required profession competence ends and barriers to entry begin is always worth consideration.

[vii] In England and Wales, the legal activities which require a license from one of the legal regulators are described as “reserved activities”. An unreserved activity can be undertaken by an unlicensed provider.

[viii] Tracey L. Adams, Regulating Professions: The Emergence of Professional Self-Regulation in Four Canadian Provinces, 2018, University of Toronto Press

[ix] The obvious example in the legal context is the Law Society of Ontario which regulates lawyers and paralegals. Lawyers elect 40 benchers and paralegals elect 5 benchers.

Similarly, the Council of the College of Nurses of Ontario includes 14 elected registered nurses and 7 elected practical nurses.

[x] In Ontario, 8 of 53 Law Society benchers are government appointees who are not lawyers or paralegals. In contrast, the Council of the College of Nurses is comprised of 21 nurses and between 14 and 18 government appointees who are not nurses, regulated health professionals or councillors of another health college.

[xi] For example, the Law Council, develops the Australian Solicitors’ Conduct Rules. The Law Council is the national representative body of the Australian legal profession. In New South Wales, the Office of the Legal Services Commissioner deals with complaints about lawyers and prosecutes disciplinary proceedings before the Disciplinary Tribunal.

[xii] Spigelman, James J., Are Lawyers Lemons? Competition Principles and Professional Regulation (October 29, 2002). Australian Law Journal, Vol. 77, p. 44, 2003

[xiii] In Ontario through the Proceedings Authorization Committee

[xiv] As a practical matter, most issues regarding paralegal scope of practice are about advocacy work rather than advisory or transactional work

[xv] Law Society Act, s. 26.1(5) – A person who is not a licensee may practise law or provide legal services in Ontario if and to the extent permitted by the by-laws.

Section 28 of LSO By-Law 4 provides that Aboriginal Court Workers, persons acting in the normal course of carrying on their profession or occupation (other than representing persons before adjudicative bodies) and persons participating before committees of adjustment are deemed not to provide legal services or to practice law.

[xvi] Law Society Act, s. 27(1) – The classes of licence that may be issued under this Act, the scope of activities authorized under each class of licence and any terms, conditions, limitations or restrictions imposed on each class of licence shall be as set out in the by-laws.

[xvii] www.slaw.ca/2016/07/13/unmet-legal-needs-the-challenge-to-legal-practice-and-to-self-regulation/

[xviii] By self-perpetuation, I mean that the regulator uses an appointment committee to fill vacancies over time on the basis of a skills matrix. The SRA provides, an example as discussed above, with a three person appointment committee including an independent chair (somehow appointed), an exiting board member and a representative of the profession.

[xix] For example, representatives of government, the judiciary, the legal professions, the legal academy and legal services consumers could act as a nominating committee.

The Law Students Society of Ontario (the “LSSO”) recently surveyed Ontario law students to better understand the debt load experienced by them and its effect on them. The LSSO Report provides important insights into the effects of increased law school tuition costs.

The LSSO Report has been well received and rightly so. However, the point of this column is not just to laud the report but to engage with it and its observations. In order to seriously address the observations in the LSSO Report, it is necessary to consider the report and to look at the cost of becoming a lawyer in context of the actors involved, their responsibilities and their interests.

The LSSO Report

The LSSO Report reflects survey responses from 697 law students from the seven Ontario law schools. Given that this is a voluntary survey, there will be selection bias in the results as a result of which some caution is merited. One can expect that those who are more concerned about law school costs would be more likely to respond.

The LSSO Report observes that “The 697 responses we received were unevenly split across the seven participating law schools, with the most responses coming from the most expensive law schools”. The following chart illustrates this point:

The response rates for Ottawa and Windsor (which represent 40% of Ontario law students) are very low at approximately 3% and 2% respectively while the response rates for Osgoode and U of T are particularly high at approximately 28% and 29% respectively[2].

Given this uneven response rate and the problem of selection bias, it should be understood that the LSSO Report predominately reports responses from Osgoode and U of T which are the law schools where students face higher costs. While it is not possible to assess the effect of selection bias within law schools, it is likely that students within each law school who were more concerned about higher costs were more likely to participate in the survey. While, the LSSO Report provides useful information, it cannot be seen as being representative. The information reported should be understood as generally reflecting the experience of students experiencing and being concerned about higher costs.

Significant highlights from the LSSO Report include the following:

This year, tuition for one year of law school at the University of Toronto was more than $36,000, with other schools closely following. Many law schools continue to raise tuition by the maximum allowable rate each year, inconsistent with inflation. …

Between 15-20% of law students expect to graduate law school with $0 owing to governments or banks – suggesting that a sizable portion of students fund their education by other means or with the support of family. In 2014, around 30% anticipated graduating debt-free, suggesting that as tuition rates increase, so too do the percentage of students graduating with debt.

At graduation, over two-thirds of participants expected to have more than $50,000 in debt owing to financial institutions (up from one third in 2014), and almost two-thirds expected to have over $20,000 in outstanding government student loans (up from one half in 2014). 19.32% of students expect that it will take them more than ten years to pay back their debts. …

82.53% of those surveyed indicated that at least one of their parents has a post-secondary credential (58.86% indicated that both had a credential). 67.86% of participants have a parent with at least an undergraduate degree, and 40.89% have a parent with at least a masters degree, a professional degree, or a doctorate degree. These numbers are similar to those in 2014, suggesting that first-generation students are still experiencing barriers to law school.

Students whose parents have completed more advanced credentials tended to have lower average debt levels than their peers. First generation students carry up to $32,066 more debt than their peers by the third year of the law school program.

Students indicate that mental health, stress, and academic success are all impacted by their debt burden and financial constraints, and that their career objectives have been altered by the cost of legal education. In open comments, many students expressed views that the profession was elitist or hypocritical on issues of access to justice or legal education.

These are important observations.

The cost of becoming a lawyer

The LSSO Report focuses on the cost of law school and makes passing reference to the cost of the licensing stage between law school graduation and the call to the bar.

Law school costs

The cost of law school in Ontario is driven principally by the cost of living in the community in which the law school is located (assuming that a student does not live at home) and the cost of tuition. Statistics Canada publishes an after tax low income cut-off by community size (LICO) for 2016 which can be used as an estimate of the cost of living as a student in different communities in Ontario[3].

Tuition varies significantly by law school[4]. The following chart shows law school tuition in 2014[5] and in 2018/19[6]:

As can be seen, law school tuition has increased since 2014 across the board.

As a rough indication of the cost of law school, the following chart shows the cost of living for three years based on the after-tax LICO and three years of tuition at current rates:

This chart shows a range of cost of about $110,000 to $175,000, an average cost of about $130,000 and a median cost of nearly $125,000. The range of law school costs is broad being about $65,000 from a low of about $110,000 to a high of over $175,000.

What is not shown in this chart is the effect of financial assistance both during law school and post-graduation. For example, I understand that financial aid expenditures at Osgoode now exceed $5 million annually which would amount to approximately $6,000 per student per annum on average for a total of nearly $20,000[8].

There are significant cost differences between the Ontario law schools. The estimated costs at Windsor, Queens, Ottawa and Western are similar ranging from about $115,000 to about $125,000 while the estimated cost at Osgoode is about $150,000 and the estimate cost of U of T is about $175,000.

With the costs of law school at Osgoode and U of T and the over representation of these schools in the LSSO Report, the actual and expected debt loads reported by the LSSO Report are not particularly surprising.

Licensing costs

Based on the LSO website, the cost of licensing fees generally totals $4,710[9]. This is 6.8% of the total of median tuition plus licensing fees[10].

For those who do not have paid articles, the cost of the licensing year[11] amounts to approximately $20,000 for a total median cost to become a lawyer of approximately $145,000. For those who have paid articles, the costs of the licensing year are likely paid for and so total median cost to become a lawyer would be approximately $125,000.

Obviously, the costs for those who attend U of T and Osgoode will be significantly above these amounts; by nearly $55,000 for U of T and about $25,000 for Osgoode.

Reported Debt Load from the LSSO Report

The LSSO Report includes the following information about the current expected debt levels on graduation. The expected debt levels vary significantly but appear to average approximately $63,000 with two-thirds of respondents expecting debt levels of between $20,000 and $80,000 on graduation – and with nearly 30% expecting debt levels of over $70,000 on graduation.

A study released in 2004 (as described below) reported that “One-fifth of all current law students expected to graduate from law school with no debt, but 27 percent expected to have debt of $40,000 to $70,000 and 13 percent expected to graduate with over $70,000 of debt” and that “Current students projected more debt at graduation than the actual debt reported by graduates”.

Recognizing methodological issues with LSSO Report, it is notable that the number of students expecting to graduate with no debt is the same as in the 2004 study. On the other hand, twenty percent of respondents in the LSSO Report expect to graduate with over $90,000 of debt compared with the 13% who expected to graduate with over $70,000 of debt ($90,837 in 2018 dollars) in the 2004 study.

What has changed and why

Some 15 years ago, the Deans of Osgoode, Ottawa, Queens, Western and Windsor commissioned a Study of Accessibility to Ontario Law Schools (the “2004 Study”) . U of T did not participate having recently completed its own internal study. The overall purpose of the 2004 Study was said to be:

1) to describe the demographic characteristics of law school students in the five Ontario law schools;

(2) to determine whether the demographic characteristics of law students have changed since tuition deregulation;

(3) to determine whether there have been changes in the types and amounts of student financial support since tuition deregulation; and

(4) to examine the amount of debt incurred by students in law school and the impact of debt on their lives.

The 2004 Study surveyed current law students obtaining responses from 2,260 students and surveyed recent law graduates obtaining responses from 966 graduates. As the 2004 Study reported “[t]he overall survey return rates were 76 percent of students and 30 percent of graduates”.

The 2004 Study reported tuition fees at the then six Ontario law schools over the period 1997/8 to 2003/4 observing that “[s]ince the deregulation of tuition for professional programs at the end of 1997, tuition fees at four of the five Ontario law schools have more than doubled, and tuition at the other has more than tripled”.

The following chart applies the All Items Consumer Price Index for Canada to the first year annual tuition reported in the 2004 Study for 1997/9 and 2003/4, to the 2014 tuition as reported by Macleans Magazine and the current tuition from the current law school websites:

There has been a very significant increase in law school tuition over the last twenty years with increases ranging from 4.4 times to 6.8 times in constant dollars. Interestingly, the increases between 2003/4 and 2018/9 are in a narrower range from 1.8 to 2.0 times. As I understand it, this reflects reregulation of tuition but with annual increases above inflation being permitted.

At this point, it is worth noting (as did the LSSO Report) the recent 10% tuition fee reduction imposed by the Ontario provincial government together with reduction in student assistance. This is a relatively small decrease in law school tuitions in the context of recent and long term real increases.

The 2004 Study also reported that “Before being called to the Bar, law students who have completed their Bachelor of Laws program must also complete the Bar Admission Course (BAC); the BAC includes an articling term with an experienced legal professional and, in 2003-04, cost $5,000 in Ontario.” This $5,000 BAC cost is just short of $6,500 in current dollars. As noted above, the current licensing cost is $4,710. These licensing costs decreased after 2004 with the elimination of the bar admission course and then increased with the introduction of the LPP/PPD.

The significant increase in law school tuition over the last twenty years begs the question what does tuition fund and what other funding is available to law schools.

To start with other available funding, there are several sources of funding. The first is government funding. For some time, government funding was on a per student basis. This incented increased class sizes with the result that the basic operating grant to universities became held to student 2010-11 levels[12]. This works out to a government contribution of something between $5,000 and $10,000 per student, which I understand is below average nationally.

There are two other sources of funding of which I am aware. The first is tuition fees from foreign students which are higher than for domestic students. The second is donations. I have not attempted to track down information regarding these sources which presumably vary by law school.

On the other side, the question is where does tuition go. There are three possible answers, namely to fund the law school (with faculty compensation being a large part of that), to cross-subsidize some students by bursaries and to fund other aspects of the university. Again, I haven’t attempted to track down information regarding these funding possibilities which also presumably vary by law school.

What is publically available and is likely the largest proportion of the cost for law schools is faculty compensation. This information is available as a result of The Public Sector Salary Disclosure Act, 1996 which requires organizations that receive public funding from the Province of Ontario to make public the names, positions, salaries and total taxable benefits of employees paid $100,000 or more (the “Sunshine List”).

But before laying out information regarding the cost of full time faculty, it is important to note that some universities use part-time adjunct faculty significantly. Looking only at full-time faculty is not the full story – but it is part of the story and is the part that is visible.

As well, there has no doubt been increased spending on increased level of service to students such as clinical and intensive programs. Many law schools now have full time student success counsellors, staff assigned to career offices, coordinators of Indigenous initiatives, significantly enhanced IT services, international exchange coordinators, and the like. As well, law schools have other mandates and interests in other areas such as new centres, institutes, partnerships, community outreach. Whether increased student tuition is or ought to be funding these other mandates and interests is an interesting question

As for full time faculty, the Sunshine List unfortunately does not identify which professors are members of the faculty of law for universities other than U of T. However, it is possible to see material differences by law school by taking the current full time faculty lists from the law school websites and extracting the compensation for those professors from the Sunshine List[13].

In any event, the following shows the average and median total compensation as disclosed by the 2017 Sunshine List for current full time faculty[14].

Consistent with the review of law school tuition above, it is no surprise that compensation for professors at Ottawa, Western, Queens and Windsor is reasonably similar (although there are differences) and that compensation is higher at Osgoode and U of T. It seems clear that higher faculty compensation and higher tuition are related. It is also notable and unsurprising that faculty compensation, other than at Osgoode and U of T, is typically in the $120,000 to $160,000 range given the labour market for lawyers generally.

There are three important points that may be made now. The first is that teaching law students is only one of the goals of a law school. The other principal goal (and perhaps sometimes the principal goal) is scholarly research and writing which is important to the relative stature of a law school, the nature of the faculty and the students that are attracted to the school. While there are no doubt advantage to being taught at a law school where scholarly work is at a high level, it is notable that tuition has materially increased over time, and particularly in some law schools, to fund faculty dedicated only in part to teaching.

The second important point is that, once increased law faculty salaries and benefits are “locked in”, one cannot expect law schools themselves to materially reduce those costs, taking into account tenure, unionization and how Canadian law schools are run. After the fact change is difficult.

The third important point is that Ontario law schools have been able to charge increased tuition because there is significant demand for admission to Ontario law schools. Over the ten years from 2008 to 2017, there have been 3.1 applicants for every first year Ontario law school spot. While this ratio has dropped to 2.8 applicants per spot in the four years from 2014 to 2017, the Ontario law schools face no lack of demand despite increased tuition costs. The significant number of Canadians going to law school in England and in Australia proves this point.

The principles in play

The LSSO Report rightly, in my view, focuses on the impact of high costs and debt loads on those who are less well-off and especially Indigenous people. Diversity of the legal profession is in issue as is social mobility in society.

While the LSSO Report does not make the point, it seems to me that the benefit corresponding with the increased cost has been enjoyed by the law schools, their faculty and, to an unknown (by me) extent, by the universities. To the extent that law schools have become better for law students as a result (including by continuing to attract able faculty), this is fair enough. But given the significant increases over the last twenty years, it is unclear the extent to which students have been beneficiaries of increased tuition revenues. And given increases in financial assistance as well as tuition, it is also unclear which students have borne the brunt of increased tuition given that the most well-to-do can afford increased tuition and the least well-to-do are more likely to have the benefit of financial assistance.

The LSSO Report also focuses on the impact of high debt levels on the choices made by new lawyers. The report fairly observes that individuals with high debt levels without or despite financial assistance are incented/forced to choose more remunerative work over less remunerative but socially desirable work. From the perspective of the new lawyer, this is an apt observation for those who can choose more remunerative work.

However, the LSSO Report goes on to claim that there is a broader impact on access to justice. I have some doubt about this claim. For this claim to be true, there would have to be more young lawyers taking up higher paid jobs and fewer new lawyers taking up lower paid jobs. But there is no reason to think that the number of higher paid jobs has increased. Also, the current reality (and this is of concern to the LSSO from their perspective) is that the annual number of new lawyers has significantly increased given increased law school sizes and the significant increase of NCA candidates. While individual choices may well be affected by increased debt levels and there may well be increased competition for higher paid jobs, there is no basis that I can see to think that there has been an overall decrease in services offered to ordinary people or to vulnerable people as a result of increased debt levels. This is not to say that we should not be concerned about the impact of high debt loads on individuals and their available choices.

Regulating tuition

Looked at as a whole, the cost of becoming a lawyer typically amount to approximately $125,000 to $145,000. There are four principal drivers to this cost namely the annual cost of living, the annual cost of tuition, the number of years in law school and experiential training and whether a paid articling position is obtained.

Law school tuition is a large part of this cost – and the increase in law school tuition is clearly the largest part of increased costs.

Regulation of university tuition is the responsibility of the provincial government. That the provincial government is the regulator of law school tuition is evident from the deregulation in the 1990s and the 10% tuition decrease just imposed. As well as regulating tuition, the provincial government makes decisions about the extent of public investment in education. Over time, the proportion of law school costs funded by the province has fallen significantly as the proportion funded by tuition has increased significantly. But I am not aware how increasing law school costs plays into this and the extent to which decreasing funding and increasing costs have respectively resulted in tuition increases.

Within regulatory limits, universities/law schools set law school tuition. It would be naive to expect law schools to simply roll back tuition increases that have funded increased faculty salaries and benefits. This would require tenured and unionized faculty to agree to roll-backs.

Some argue that the Law Society ought to step in and regulate law school tuition. However, while the Law Society has authority over admission to the practice of law, it is not the regulator of law schools. That something should be done does not mean that the Law Society has the authority to do it.

I accept that there is an argument to the contrary[15]. In the Trinity Western[16] cases, the majority of Supreme Court of Canada accepted at paras. 22 and 23 of TWU v. LSUC that the Law Society was entitled to decline to accredit TWU because “eliminating inequitable barriers to legal training and the profession generally promotes the competence of the bar as a whole” and the Law Society “was also entitled to interpret the public interest as being furthered by promoting a diverse bar.”

The argument goes that excessive tuition is an inequitable barrier that diminishes competence and diversity in the bar. There is truth to this. However, there is a difference between high tuition and discrimination based on the basis of personal characteristics. There is a difference between refusing to accredit one new law school based on discriminatory admission practices and disaccrediting some or all of the existing Ontario law schools on the basis that excessive tuition is being charged.

Final observations

The LSSO Report provides valuable insight despite methodological issues. The 2004 Study commissioned by the five Law Deans was a more robust and broader study. Without meaning to be critical of the LSSO Report, the current Law Deans and the Law Society, in collaboration with the Law Foundation, may wish to consider repeating the 2004 Study given the subsequent real increases in law school tuition and the implications of those increases. There would be value in studying the impact of debt levels on the career choices and mental health of recent calls and the relationship between economic barriers and equity, diversity & inclusion. Better insight into the components of law school costs, including the cost of clinical and intensive programs, student services and the cost of adjunct faculty, could be of value as could better insight into sources of funding.

There are significant tuition differences between the law schools. This is likely because different law schools have made different strategic choices. While accessibility should remain an issue for all law schools, there is value in having different types of law schools so long as students understand what they are getting into. Encouraging awareness of those differences, including cost differences, on admission may be worthwhile.

The time to become a lawyer in Ontario is lengthy and that costs increase with time. There are three components; pre-law school studies, law school and licensing. While students can theoretically be admitted to law school with two years of undergraduate, this isn’t the reality. The LSSO Report says that 98.46% of respondents had at least an undergraduate degree with nearly one-fifth having a Masters or a PhD. Competition for law school admission has increased the time to become a law student.

Once admitted to law school, students have nearly four years to become a lawyer, three years in law school and nearly one year in the licensing phase. In Ontario in 2019, becoming a lawyer generally requires eight years after high school and commonly requires ten or more years – which is a long time and is longer than in many other jurisdictions.

These observations raise possibilities. Could/should there be an accredited two year law degree as well as a three year degree? Could/should the law schools and the law societies work together to create a shorter and integrated path to licensing? Should high quality flex-time legal education be more available so that law students can better fund their legal education? Is there room for different approaches by different law schools? These are interesting and difficult questions that may merit serious thought and would require better collaboration between the law schools and the Law Society.

There are no doubt other approaches that ought to be considered.

What do you think?

_________________________

[1] To estimate the number of students who could have responded, I have taken the last three years of law school admissions available from the Ontario Universities’ Application Centre and have assumed an annual 5% attrition rate for second and third year.

[2] Using 2017 admission numbers times three years as an indication of the size of the sample set.

[3] The after-tax LICO for one person in a community of population of 500,000 or over which is $20,675 while the after-tax LICO for a community of 100,000 to 500,000 is $17,485. The after-tax LICO for a community of 30,000 to 100,000 is $17,267.

[4] The LSSO Report states that “This year, tuition for one year of law school at the University of Toronto was more than $36,000, with other schools closely following.” I do not think that it is correct to say that tuition at the other law schools closely follows the tuition at U of T.

[5] As reported in McLean’s Magazine

[6] As reported in current law school websites.

[7] As Thunder Bay is a more remote community, it may be that using LICO somewhat understates the cost of living.

[8] Of course, financial assistance would not be distributed equally to all students.

[9] Application Fee of $160, Barristers Examination of $750, Solicitors Examination of $750, Experiential Training of $2,800, Call to the Bar Fee of $250

[10] In her introduction to the LSSO Report, Heather Donkers observes that “… the Law Society of Ontario (LSO) has instituted changes to the licensing process that have, over the last decade, more than doubled its cost for new graduates, prolonging the climb out of debt”. While true, this observation does not note that the increase is a small proportion of the total cost of becoming a lawyer and that the current costs are comparable to the costs of the 1990s.

[11] Living costs and licensing costs.

[12] See 2015 Overview of the Current University Funding Model

[13] There are some new professors who obviously aren’t listed. I doubt that this materially affects the results except to the extent that new professors earn less then more senior professors. But unless there are material variations by law school in terms of new hirers, this should not affect the relative results. That said, I exclude Lakehead where there have been significant new hires.

[14] No insight is provided for those with annual salaries of less than $100,000. However, it does not appear that there are many professors who earn less than $100,000 when adjunct professors are excluded.

[15] H/T Douglas Judson

[16] Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33

(First published on slaw.ca)

The Law Society of Ontario has a duty to maintain and advance the cause of justice and the rule of law[1]. Does that mean that the Law Society is empowered to intervene in private litigation in order to advance the cause of justice? Is the Law Society is entitled to involve itself in judicial review cases where it is alleged that another administrative body has acted outside of its jurisdiction, or for improper purposes, in breach of the rule of law principle?

The Law Society has a duty to act so as to facilitate access to justice for the people of Ontario[2]. Is the Law Society empowered establish a new family law tribunal to facilitate better access to justice? Is the Law Society is entitled to establish and fund new legal clinics to provide legal services in areas of unmet legal need?

The Law Society is authorized to prescribe the qualifications and other requirements for licensing as a lawyer or a paralegal in Ontario and to prescribe licensing terms, conditions, limitations and restrictions[3]. Is the Law Society entitled to limit the number of licenses issued in order to limit competition? Is the Law Society entitled to require as a condition of licensing that licensees contribute some amount to the United Way or a comparable charity?

What legal analysis provides the answer to these questions?

Thinking about Mandate

In administrative law, it is conventional to examine the legal limits of delegated authority in terms of the scope of delegated mandate and the purposes for which that mandate has been delegated[4]. As we know from Roncarelli v. Duplessis, [1959] SCR 121, a delegated decision-maker cannot use its statutory mandate for a purpose for which that authority was not granted. Equally, a delegated authority cannot exercise an authority which has not been granted to it under its mandate even for a proper purpose.

For the most part, the mandate of the Law Society is obvious[5]. For example, the mandate obviously includes determining what is and is not professional conduct. The mandate obviously includes determining what education is required for issuance of a license to practise law.

Equally, the purposes of Law Society regulation are mostly obvious as well. For example, the Law Society is charged with regulating in the public interest[6] rather than in the interest of licensees.

But the mandate is not always so clear. One recent example was the Trinity Western University case. There is no question that the Law Societies have the responsibility to accredit Canadian law schools for licensing purposes. But what is properly taken into account in the accreditation decision was more controversial. The minority in the Supreme Court of Canada concluded that only competence of the graduates was properly considered. The majority took a broader view.

The Supreme Court of Canada addressed the mandate of the Law Society in Green. The majority concluded that “The legislature has given the Law Society a broad public interest mandate and broad regulatory powers to accomplish its mandate. This mandate must be interpreted using a broad and purposive approach”.

While we know that the mandate is a broad public interest mandate, there are necessarily limits to the mandate. This follows from the rule of law principle. As the Supreme Court of Canada said in Dunsmuir at para. 28 “By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution.” That there are legal limits to the authority of the Law Society is evident. Where those limits may be is less certain.

Context – The Legal System

Before directly considering the mandate of the Law Societies, it is useful to note its context.

There are many players in the legal system, each with their own role and responsibilities. Laws are promulgated by three levels of government. Judges and tribunal adjudicators decide civil, criminal, family and other disputes. Lawyers employed by federal, provincial and municipal governments prosecute criminal, quasi-criminal and regulatory matters. Law enforcement determines what conduct is investigated and is treated as serious enough to engage legal processes. Law schools provide legal education.

Lawyers, and in Ontario licensed paralegals, provide legal services to clients. Governments provide some legal assistance through legal aid clinics, staff lawyers and by legal aid payments for services rendered by private practitioners. Not-for-profit and charitable organizations provide legal information and other assistance.

The Law Society is but one part of this complex system. Its mandate presumably takes into account the roles of the other legal system players.

Governance of the Profession – The Traditional Mandate of the Law Societies

The traditional role of the Law Society is to regulate the legal profession. This traditional role continues to be reflected in modern jurisprudence.

In R. v. Cunningham, the Supreme Court of Canada observed that “Both [the role of the Law Society and the role of the courts] are necessary to ensure effective regulation of the profession and protect the process of the court.”

In CNR v. McKercher, the Supreme Court said that “[t]he purpose of law society regulation is to establish general rules applicable to all members to ensure ethical conduct, protect the public and discipline lawyers who breach the rules — in short, the good governance of the profession”.

In Law Society of British Columbia v. Trinity Western University, the majority of the Supreme Court of Canada stated “… where a legislature has delegated aspects of professional regulation to the professional body itself, that body has primary responsibility for the development of structures, processes, and policies for regulation. This delegation recognizes the body’s particular expertise and sensitivity to the conditions of practice. This delegation also maintains the independence of the bar, a hallmark of a free and democratic society …”

The traditional role of the Law Society is to govern the legal profession, to determine what is required to become a lawyer, to determine who may be licensed as a lawyer, to determine the professional competence and conduct that is required of lawyers and to enforce those standards – all to protect the public. This is the essence of delegated professional self-regulation.

Nearly 25 years ago, the Law Society of Upper Canada (as it then was) adopted the following role statement which nicely expresses this traditional role:

The Law Society of Upper Canada exists to govern the legal profession in the public interest by,

ensuring that the people of Ontario are served by lawyers who meet high standards of learning, competence and professional conduct; and

upholding the independence, integrity and honour of the legal profession,

for the purpose of advancing the cause of justice and the rule of law.

The changing legal services paradigm

While it may be pastoral myth, it appears that there was a time when lawyers were the only providers of legal services. While small claims courts existed so that “ordinary” people could advance small claims themselves, litigation in the courts was with the assistance of lawyers. The courts were the principal focus of the legal system, with administrative law being a relatively new phenomenon.

In Ontario, this started to change about 30 years ago when the Court of Appeal for Ontario determined in Regina v. Lawrie and Pointts Ltd. (1987), 59 OR (2d) 161 that “a paid agent acting for persons charged with traffic offences .. [could not be] be prosecuted for acting as a barrister or solicitor”. As Blair J.A. observed:

It is not the role of this court to determine whether, as a matter of policy, the operations of the respondents serve the public interest. It is obvious from the business they have attracted that they are providing an unmet need for service to the public.

While the Court of Appeal effectively recognized and accepted paralegals in Ontario in 1987, it took 20 more years for paralegal regulation to be implemented in Ontario despite the following observation by Blair J.A.:

While no reflection of any kind was made in this case on the respondents, there must be concern about the absence of any control over the education, qualification, competence and probity of all agents. They deal with serious matters because penalties of up to six months imprisonment apply to some offences under the Highway Traffic Act. No provision exists for disciplining or supervising agents and protecting the public from financial loss arising from the improper performance of their responsibilities by way of an insurance scheme like that of the law society.

… It is the responsibility of the Legislature to resolve these issues of policy. The task of this court is to determine whether, on a proper construction of the relevant statutes, they prohibit what the respondents were doing.

Paralegals found work in Ontario because there were unmet legal needs. But clearly there are still unmet legal needs despite paralegal regulation and the substantially increased number of paralegals in practice.

The changing mandate

The traditional mandate was premised on the assumption that only lawyers should be allowed to provide legal services. While Law Societies prosecuted unauthorized practice of law before the courts, their principal work was in licensing lawyers, supporting and regulating lawyer conduct and arranging for client protection in the event of lawyer negligence or dishonesty.

While unregulated paralegals were permitted to provide certain legal services in Ontario after the Pointts case in 1987, the mandate of the Law Society did not change until 2007 when the Law Society Act was amended so that the Law Society became the self-regulator of two professions.

The fact that the Law Society became the regulator of a second legal profession was obviously a significant change. But there was another important change that is perhaps not as well appreciated. The amended Law Society Act provided that no one can provide legal services unless licensed by the Law Society or unless the Law Society determined that a license was not required. The amended Law Society Act provided that the Law Society had the authority to determine the permitted scope of practice of its licensees.

Said another way, the self-regulator of two legal professions became responsible for determining whether other new licensed or un-licenced legal service providers ought to be permitted and became responsible for determining what legal services should be reserved only to lawyers and what legal services paralegals should be permitted to provide.

The traditional mandate did not require that the Law Society determine who, other than lawyers, could provide legal services. By 2007, the Law Society was given the responsibility to determine the extent to which paralegals could provide legal services and the extent to which other new licenced and un-licensed providers should also provide legal services. The Law Society regulates all categories of licensees. The Law Society once “merely” regulated a profession. This clearly is no longer the case.

Amendments to Law Society Act

A New Grant of Authority

The core amendment to the Law Society Act was the broad definition of “legal services” in subsections 1(5) and (6). Subsection 1(5), which is as follows, generally defined “legal services” while subsection 1(6) provides a number of examples for greater certainty:

For the purposes of this Act, a person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.

Subsection 1(6)(1) further generally provides that ” a person provides legal services if the person … [g]ives a person advice with respect to the legal interests, rights or responsibilities of the person or of another person”

Subsection 26.1(1) provides that “Subject to subsection (5), no person, other than a licensee whose licence is not suspended, shall practise law in Ontario or provide legal services in Ontario”.

Subsection 26.1(5) provides that ” A person who is not a licensee may practise law or provide legal services in Ontario if and to the extent permitted by the by-laws.”

Subsection 26.1(3) provides that “No licensee shall practise law in Ontario or provide legal services in Ontario except to the extent permitted by the licensee’s licence”.

By these amendments, the Law Society was given the mandate to determine who could provide legal services in Ontario and whether a license was required to do so.

New Legislative Direction

At the same time, the Law Society was given new directions. Section 4.1 of the Act provides that:

It is a function of the Society to ensure that,

(a) all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide; and

(b) the standards of learning, professional competence and professional conduct for the provision of a particular legal service in a particular area of law apply equally to persons who practise law in Ontario and persons who provide legal services in Ontario.

Notably, section 4.1 refers to “a function” rather than “the function”. But this is obviously the core function of the Law Society, namely to ensure law is practised and legal services are provided to appropriate standards of learning, professional competence and professional conduct. This is the traditional mandate of the Law Society.

What is more interesting is section 4.2 of the Act which provides that:

In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:

1. The Society has a duty to maintain and advance the cause of justice and the rule of law.

2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.

3. The Society has a duty to protect the public interest.

4. The Society has a duty to act in a timely, open and efficient manner.

5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.

The structure of section 4.2 is interesting. The opening language of the section states that the Law Society shall have regard to the stated principles in “carrying out its functions, duties and powers under this Act”. Section 4.2 would appear to provide legislative direction to the Law Society as to the principles to be considered in carrying out its mandate, rather than adding to the mandate by adding additional functions, duties and powers. That said, there is a certain imprecision in section 4.2 in the inclusion the word “duties” in the phrase “functions, duties and powers”, then describing the contents of subsections 4.2(1) as “principles” and then using the word “duties” in subsections 4.2(1) to (4).

It is uncontroversial (but not always well understood) that the Law Society has a duty to protect the public interest in carrying out its mandate as subsection 4.2(3) requires. It makes good sense that the Law Society should act in a timely, open and efficient manner in carrying out its mandate as subsection 4.2(4) requires. It makes good sense that regulatory standards should should be proportionate to the significance of the regulatory objectives as subsection 4.2(5) requires.

The recent Trinity Western University v. Law Society of Upper Canada decision of the Supreme Court of Canada provides an important example of the impact of section 4.2. There is no doubt that the Law Society’s mandate includes determining whether or not to accredit a law school for licensing purposes. As the majority put it:

The LSUC has the statutory authority to establish requirements for the issuance of a licence to practise law in Ontario. In this context, it has set out a procedure whereby it accredits law schools for the purpose of recognizing degrees that will satisfy one of the requirements for a licence. This appeal requires us to address the scope of the LSUC’s statutory mandate.

The majority went on to say at paras 18 to 20 that:

By the clear terms of s. 4.2 of the LSA, the LSUC must have regard to the principles set out in that section — including its duty to protect the public interest — in carrying out all of its “functions, duties and powers” under the LSA. The LSUC, as a regulator of the self-governing legal profession, is owed deference in its determination as to how these principles can best be furthered in the context of a particular discretionary decision (see Law Society of B.C., at paras. 32 and 34-38).

In this case, the LSUC interpreted its duty to uphold and protect the public interest as precluding the approval of TWU’s proposed law school because the mandatory Covenant effectively imposes inequitable barriers on entry to the school. The LSUC was entitled to be concerned that inequitable barriers on entry to law schools would effectively impose inequitable barriers on entry to the profession and risk decreasing diversity within the bar. Ultimately, the LSUC determined that the approval of TWU’s law school, as proposed, would negatively affect equitable access to and diversity within the legal profession and would harm LGBTQ individuals, which would be inconsistent with the public interest.

In our view, the LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context, which necessarily includes upholding a positive public perception of the legal profession.

The Trinity Western case makes clear that section 4.2 guides the Law Society in the exercise of its mandate in that the Law Society properly takes into account the principles set out in section 4.2 in making decisions within its mandate.

Maintain and Advance the Cause of Justice and the Rule of Law

Subsections 4.2(1) and 4.2(2) perhaps contain the most interesting principles. If section 4.2(1) is a required goal of regulatory decision-making then this provision is easily understood. The Law Society is authorized by the Act to establish standards of professional conduct and to bring allegations of professional misconduct before the Tribunal for adjudication. It makes sense that the Law Society should be required to seek to “maintain and advance the cause of justice and the rule of law” in doing so given the fundamental importance of ethical conduct to the cause of justice and the rule of law. A recent example of this is the Groia case in which Justice Moldaver said for the majority that:

To achieve their purpose, it is essential that trials be conducted in a civilized manner. Trials marked by strife, belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct are antithetical to the peaceful and orderly resolution of disputes we strive to achieve.

By the same token, trials are not — nor are they meant to be — tea parties. A lawyer’s duty to act with civility does not exist in a vacuum. Rather, it exists in concert with a series of professional obligations that both constrain and compel a lawyer’s behaviour. Care must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer and defence are not sacrificed at the altar of civility.

In establishing codes of professional conduct and in exercising prosecutorial discretion, it makes sense that the Law Society should be obliged to seek to maintain and advance the cause of justice and the rule of law by seeking to ensure professional conduct that advances those goals.

But does the Law Society have a new mandate to maintain and advance the cause of justice and the rule of law beyond its traditional mandate and its new additional mandate of determining who can provide legal services and to what extent? What would that mean? For example, is it now the mandate of the Law Society to provide legal services to those who wish to litigate alleged failures of the cause of justice and the rule of law? Should the Law Society, as litigant, take proceedings to challenge state action where it is alleged that the rule of law has not been honoured? Should the Law Society ordinarily intervene in administrative law cases on the basis that Dunsmuir makes clear that the rule of law principle requires that delegated authorities stay within their mandates? Should the Law Society be a political actor in Ontario in support of the cause of justice and the rule of law?

I think that the answer to these questions is clearly no. But there are questions at the margin. The Law Society of Ontario regularly writes to foreign governments raising concerns about “human rights violations that target members of the legal profession and the judiciary as a result of the discharge of their legitimate professional duties”. A credible argument can be made that, strictly speaking, this is outside of the mandate of the Law Society of Ontario. But pragmatically, doing so is ordinarily of limited practical concern and can be of significant benefit.

Facilitate Access to Justice for the People of Ontario

Subsection 4.2(2) raises similar issues. It makes good sense that the Law Society should exercise mandate “so as to facilitate access to justice for the people of Ontario”. Setting appropriate standards of learning, professional competence and professional conduct requires that the effect on access to justice of overly low, or overly high, standards be considered. Deciding what legal services may be provided by paralegals or other new types of licensee clearly requires that access to justice be considered in the decision-making. The same must be true in determining whether there are legal services than can be provided by un-licensed persons. Just as the Law Society must maintain and advance the cause of justice and the rule of law in fulfilling its mandate, the Law Society must facilitate access to justice for the people of Ontario.

But does “the duty to facilitate access to justice for the people of Ontario” extend the mandate of the Law Society? Is the Law Society authorized by section 4.2 to become a legal service provider in order to facilitate access to justice? Is the Law Society authorized to subsidize legal service providers? Does section 4.2 authorize, or require, the Law Society to fund and provide legal aid?

The history of the involvement of the Law Society in Legal Aid provides an interesting context for this discussion. Prior to the early 1950s, the Law Society objected to “anything but traditional, informal legal aid”[7]. In 1950, the Law Society established a formal legal aid plan under which pro bono legal assistance was provided “for needy persons”. The Law Society Act was amended to provide that “The benchers may establish a plan to provide legal aid to persons in need thereof” and that “the benchers may create a fund, to be called “The Legal aid fund”, which shall be made up of such moneys as the regulations provide for, including moneys recovered as costs and such moneys as the Society provides from its general funds”[8].

By the early 1960s, “the Ministry of the Attorney General began to investigate how to make legal assistance a right that would not depend on the benevolence of lawyers”[9]. In 1966, the Legal Aid Act was passed[10]. Section 2 of this Act provided that “Subject to the approval of the Minister of Justice and Attorney General, the Law Society is hereby empowered to establish and administer a legal aid plan in accordance with this Act and the regulations”.

Section 5 of this Act required the Law Society to establish and maintain a fund to be known as the Legal Aid Fund “into which shall be paid all moneys appropriated by the Legislature for the Fund”. This was the beginning of government-funded Law Society-administered legal aid[11].

In 1994, there was a legal aid crisis in Ontario. The problem wasn’t entirely new but the scale of the problem was. The cost of legal aid had risen from $6 million when founded, to $25 million in 1976 when an earlier crisis had occurred to a projected cost for 1995 of $285 million. As Christopher Moore put in in his book “Simply put, the ever-rising cost of legal aid was taxing government’s willingness to pay the bills”[12].

By 1999, the role of the Law Society as the administrator of legal aid came to an end. As described by the Law Society Legal Aid Working Group[13]:

In 1997, the report of the Ontario Legal Aid Review (“McCamus Report”) recommended an independent body to govern the legal aid plan. The Law Society’s role as administrator came to an end in 1999 – after almost 50 years in that role — with the creation of Legal Aid Ontario as an independent agency under the Legal Aid Services Act, 1998. Since then, LAO has further expanded the mixed model of service delivery by adding staff offices, telephone hotlines and other new approaches.

The provision of legal aid, including originally organizing pro bono legal services, was part of the statutory mandate of the Law Society from 1951 to 1999. That mandate was removed from the Law Society Act with the passage of the Legal Aid Services Act, 1998 and transferred to Legal Aid Ontario which now has this responsibility.

What can we learn from this historical review? Firstly, there is a history of Law Society involvement with legal aid including funding the organization of pro bono legal services. Secondly, organized pro bono services were replaced by state funded legal aid presumably because the provision of legal aid to persons in need was seen as a societal responsibility. Thirdly, there was express statutory authority when the Law Society’s mandate included the funding and/or administration of legal aid.

While it seems clear to me that the “duty to facilitate access to justice for the people of Ontario” is a principle to be applied in decision-making within the mandate of the Law Society rather than the basis for a new and different mandate, it is fair to observe this principle (like the cause of justice/rule of law principle) seems to cause the Law Society to go somewhat beyond its mandate as strictly defined.

In 2012, the Law Society adopted a “policy related to external requests for support and funding to the Law Society”. The 2012 Policy started with the observation that:

The primary function of the Law Society of Upper Canada (the “Law Society”) as prescribed by the Law Society Act is to regulate the legal professions in the public interest. As it carries out this function, the Law Society Act further directs the Law Society to apply specific principles, as follows: the Law Society has a duty to maintain and advance the cause of justice and the rule of law, to act so as to facilitate access to justice for the people of Ontario, to protect the public interest and to act in a timely, open and efficient manner.

This is consistent with the thesis of this column that the principles in section 4.2 guide the Law Society in respect of its mandate rather than establishing new mandates.

The 2012 Policy went on to stay that:

The Law Society is not a funding agency and is mindful of its statutory duties, its obligations to responsibly manage its members’ fees and its budget planning process. Therefore, the Law Society will, at its discretion and only in exceptional circumstances, consider requests for financial support by external organizations for programs or projects that advance the Law Society’s mandate. The program or project must also align with the Law Society’s current priorities for the bencher term …

This has not meant that the Law Society has not supported external organizations using funds obtained from lawyer and paralegal licensing fees[14]. The Law Society spends significant monies supporting the provision of legal information, most notably in supporting the county courthouse library system and CanLII. The Law Society contributes to the Federation of Ontario Law Societies and the Law Commission of Ontario.

Perhaps more notably, the Law Society contributed in 2018 to the Lawyers Feed the Hungry and will continue to contribute in 2019 to the Ontario Justice Education Network, Pro Bono Ontario and Innocence Canada[15]. Strictly speaking, these contributions may not be within the mandate of the Law Society even though they may fit within the 2012 Policy.

Conclusion

The Law Society Act is explicit about the mandate of the Law Society. Part I.1 of the Act authorizes the licensing aspect of mandate. Part II of the Act addresses the professional conduct, professional competence and capacity aspects of mandate. Part III of the Act addresses the Compensation Fund, the Law Foundation and mandatory professional insurance. Sections 62 of the Act provides a by-law making power.

Section 4.2 provides statutory purposes which must be taken into account in performing the mandate.

There are some functions which are in support of the primary aspects of the mandate. For example, legal information in local law libraries (LibraryCo) and on the internet (CanLII) supports professional competence. Similarly, the Member Assistance Program supports professional conduct and capacity. The Law Society Practice Management Helpline supports professional conduct. The Coach and Advisor Network supports professional conduct and competence. Law Society CPD supports professional competence.

So how can we summarize all of this? While not the focus of the reasons, the majority of the court in Groia said as follows at para. 114 (emphasis added):

Under its statutory mandate, the Law Society has a duty to advance the public interest, the cause of justice and the rule of law by regulating the legal profession …

This seems to me to be an apt but incomplete formulation. To restate:

Under its statutory mandate, the Law Society has a duty to advance the public interest, the cause of justice and the rule of law and facilitate access to justice by regulating licensees … and by determining the legal services, if any, that may be provided by non-licensees.

The rule of law principle, which has special salience for the Law Society, requires that the Law Society think and act in a clear and principled way about the power given to it by society. This is not always easy especially if a valuable social purpose can be advanced by acting outside of the delegated mandate. But the rule of law does not only limit doing bad things outside the delegated mandate.

_________

[1] Law Society Act, RSO 1990, c L.8 as amended, s. 4.2(1)

[2] Law Society Act, supra., s. 4.2(2)

[3] Law Society Act, supra., s. 62(0.1)(4) and (4.1)

[4] For example, Katz Group Canada Inc. v. Ontario (Health and Long-Term Care, 2013 SCC 64 at paras. 24 to 25, Green v. Law Society of Manitoba, 2017 SCC 20 at paras. 27 to 42 and Reference re Pan-Canadian Securities Regulation, 2018 SCC 48 at para. 88

[5] The following are personal reflections.

[6] This is not to say that determining what is in the public interest is always straightforward. But that is what must be done.

[7] The Law Society of Upper Canada and Ontario’s Lawyers 1797 to 1997, Christopher Moore, at page 241.

[8] The Law Society Amendment Act, 1951 SO 1951, c 45

[9] The Law Society of Upper Canada and Ontario’s Lawyers 1797 to 1997 at p. 274

[10] Legal Aid Act, SO 1966, c. 80

[11] The Law Society of Upper Canada and Ontario’s Lawyers 1797 to 1997 at pp. 274 to 277

[12] The Law Society of Upper Canada and Ontario’s Lawyers 1797 to 1997 at p. 334

[13] Report of the Legal Aid Working Group: An Abiding Interest, January 25, 2018 at p.9

[14] Law Society of Ontario 2019 Budget at p. 19

[15] $25,000 for Ontario Justice Education Network, $50,000 for Pro Bono Ontario and $25,000 for Innocence Canada

(First published on slaw.ca)

In the last thirty years, Law Societies have been parties before the Supreme Court of Canada in thirteen cases according to CanLII[i] [ii]. Four of these cases have been decided in the last fifteen months[iii]. While others will delve more deeply into this recent jurisprudence, it is interesting to take a preliminary look at the way that the Court has understood the role, responsibility and jurisdiction of the Law Societies. It is noteworthy that the court has been divided in each of these four cases.

In Green v. LSM [iv], the Court upheld mandatory suspension for failure to comply with the CPD requirements of the Law Society of Manitoba. In Groia v. LSUC[v], the Court set aside a finding of professional misconduct for alleged in-court incivility in the context of criminal law defence. In TWU v. LSUC and in LSBC v. TWU[vi], the Court upheld decisions not to accredit Trinity Western University as a law school.

Green v. Law Society of Manitoba

The issue in Green v. LSM was the imposition of mandatory CPD together with mandatory administrative suspension for non-compliance. As a matter of administrative law, the Court addressed the standard of review of Law Society rule making. Justice Wagner, as he then was, wrote for the majority. He said that Dunsmuir[vii] applied because it applies to “all exercises of public authority” and to “those who exercise statutory powers”. In concluding that deference was required in considering Law Society rules, Justice Wagner stated that “In the case at bar, the legislature specifically gave the Law Society a broad discretion to regulate the legal profession on the basis of a number of policy considerations related to the public interest. The Act empowers the benchers of the Law Society to make rules of general application to the profession, and in doing so, the benchers act in a legislative capacity.”[viii]

In his reasonableness analysis, Justice Wagner looked to the Law Society’s statutory mandate. He said at para. 29 that “the Act contains an expansive purpose clause that obligates the Law Society to act in the public interest” and that “[t]he meaning of ‘public interest’ in the context of the Act is for the Law Society to determine”. On the CPD requirement itself, Justice Wagner observed at para. 59 that “The educational standards in respect of CPD, as defined by the Rules, do not relate solely to the competence of lawyers. … these standards also protect the public interest by enhancing the integrity and professional responsibility of lawyers, and by promoting public confidence in the profession”.

Justices Abella and Côté dissented but not on standard of review. They would not have upheld the rule because it provided for mandatory administrative suspension for non-compliance irrespective of the circumstances and without discretionary authority to relieve against unfair application. Justice Abella’s analysis of the role of the law societies is of interest. As she put it at para. 80:

Law Societies therefore represent — and are dedicated to protecting — the core values of the profession. They also represent — and are dedicated to protecting — the public’s confidence that those values will guide the lawyers who serve them. While the primary goal of the Law Society is the protection of the public interest, it cannot do so without also protecting the ability of its members to practise law professionally. …

In Justice Abella’s opinion, mandatory suspension for non-compliance irrespective of the circumstances compromised public confidence in the lawyer’s professionalism. Justice Wagner, for the majority, was not prepared to accept the premise of Justice Abella’s conclusion as Mr. Green had generally attacked the rule itself and that “In framing his challenge to the Rules in this way, Mr. Green wrongly assumes that the Law Society will not take its duty of procedural fairness seriously and provide for an appropriate procedure that is responsive to the particular facts and the reasonable expectations of the parties.”[ix] [cite]

What is of interest generally is that the Court in Green concluded that the Law Society is a public authority exercising a broad legislative discretion to regulate the legal profession in the public interest. The majority and the minority agreed that the role of the Law Society requires focus on public confidence in the legal profession as well as on the competence and conduct of individual lawyers.

Groia v. Law Society of Upper Canada

In Groia v. LSUC, the Court considered an adjudicative decision rather than a conduct rule. The Court again addressed standard of review with both the majority and the dissenters concluding that deference was required. In their concurring reasons Justices Côté and Brown would have applied correctness review, but agreed with the majority that the Law Society’s decision could not stand. The live issue between the majority and concurring judges was whether deference was appropriate in respect of in-court conduct given the fundamental principle of judicial independence.

For the majority, Justice Moldaver wrote at para. 54 that “Crucial to the principle of judicial independence is the presiding judge’s power to control his or her courtroom. However, I do not see a deferential standard of review as threatening that power.” At para. 55, he wrote that “Courts and law societies enjoy concurrent jurisdiction to regulate and enforce standards of courtroom behaviour. A trial judge is free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a law society’s disciplinary decision by a different court.” Justice Côté, with whom Justice Brown agreed, concluded that para. 169 that “correctness review is required to ensure proper respect for the judiciary’s constitutionally guaranteed place in our democracy”.

As to the reasonableness of the finding of professional misconduct, Justice Moldaver for the majority held at para. 88 that “it is not professional misconduct to challenge opposing counsel’s integrity based on a sincerely held but incorrect legal position so long as the challenge has a sufficient factual foundation, such that if the legal position were correct, the challenge would be warranted”. Justice Moldaver observed at para. 89 that “Many legal principles we now consider foundational were once controversial ideas that were fearlessly raised by lawyers. Such innovative advocacy ought to be encouraged — not stymied by the threat of being labelled, after the fact, as “unreasonable”.

Justice Moldaver advanced two reasons why legal error should not be the basis for of a finding unreasonable allegation of prosecutorial misconduct. The first at para. 90, which is resonant with Justice Abella’s dissent in Green v. LSM, is that “a finding of professional misconduct against a lawyer can itself be damaging to that lawyer’s reputation. Branding a lawyer as uncivil for nothing more than advancing good faith allegations of impropriety that stem from a sincerely held legal mistake is a highly excessive and unwarranted response.”[x]

The second reason at para. 91 is that:

… Prosecutorial abuse of process is extraordinarily serious. It impairs trial fairness and compromises the integrity of the justice system: … Defence lawyers play an integral role in preventing these dire consequences and holding other justice system participants accountable by raising reasonable allegations. Finding a lawyer guilty of professional misconduct on the basis of incivility for making an abuse of process argument that is based on a sincerely held but mistaken legal position discourages lawyers from raising these allegations, frustrating the duty of resolute advocacy and the client’s right to make full answer and defence.

The second reason is also resonant with Justice Abella’s dissent in Green where she wrote that the Law Society must “[protect] the ability of its members to practise law professionally”. Justice Moldaver’s second reason emphasizes the importance of the duty of resolute advocacy and the right of an accused client to make full answer and defence which are of course essential to professional legal practice.

For present purposes, the significance of Groia v. LSUC appears to be that the law societies and the courts do have concurrent jurisdiction to regulate and enforce in-court conduct but that it is necessary that law society decisions not unreasonably stigmatize lawyer conduct and fully take into account the lawyer’s role in the administration of justice.

Trinity Western

The LSBC v. TWU and TWU v. LSUC decisions both address the decision not to accredit Trinity Western University for lawyer licensing purposes. The decision is unlike Green v. LSM in that law society rule-making was not in issue. The decision is unlike Groia v. LSUC in that a disciplinary adjudicative decision was not in issue.

The TWU cases are significant because they address the proper purposes of law society regulation and because the cases are different than Green and Groia in that the accreditation decision affected the Charter-protected freedom of religion of evangelical Christians rather than the legal system, accused persons and lawyers.

It is helpful to start with the dissenting reasons of Justices Côté[xi] and Brown in LSBC v. TWU which conclude at para. 273 that:

A careful reading of the LPA leads us to conclude that the only proper purpose of an approval decision by the LSBC is to ensure that individual licensing applicants are fit for licensing. Given the absence of any concerns relating to the fitness of prospective TWU graduates, the only defensible exercise of the LSBC’s statutory discretion for a proper purpose in this case would have been for it to approve TWU’s proposed law school.

In para. 66 of their minority reasons in TWU v. LSUC, Justices Côté and Brown conclude that “In light of the LSUC’s mandate, it is crystal clear that the provisions in By-Law 4 relating to the accreditation of law schools are meant only to ensure that individual applicants are fit for licensing” (emphasis in the original).

There being no claim that graduates of TWU would not be fit for licensing, this conclusion would have been dispositive if accepted by the majority.

Before considering the majority reasons, it is useful to set out some of the relevant legislative provisions. In the Legal Profession Act[xii] (the “BC LPA”)of British Columbia, section 3 provides that:

It is the object and duty of the society to uphold and protect the public interest in the administration of justice by

(a) preserving and protecting the rights and freedoms of all persons,

(b) ensuring the independence, integrity, honour and competence of lawyers,

(c) establishing standards and programs for the education, professional responsibility and competence of lawyers and of applicants for call and admission,

(d) regulating the practice of law, and

(e) supporting and assisting lawyers, articled students and lawyers of other jurisdictions who are permitted to practise law in British Columbia in fulfilling their duties in the practice of law.

In the Law Society Act[xiii] (the “ON LSA”) of Ontario, section 4.2 provide that:

4.2 In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:

1. The Society has a duty to maintain and advance the cause of justice and the rule of law.
2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
3. The Society has a duty to protect the public interest.
4. The Society has a duty to act in a timely, open and efficient manner.
5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.

Statutory objectives

In their majority decision, Justices Abella, Moldaver, Karakatsanis, Wagner, Gascon took a broad view of the proper purposes in accreditation.

In paras. 31 and 32 of LSBC v. TWU, the majority expressed their view that “the LPA requires the Benchers to consider the overarching objective of protecting the public interest in determining the requirements for admission to the profession, including whether to approve a particular law school” and that “The legal profession in British Columbia, as in other Canadian jurisdictions, has been granted the privilege of self-regulation. In exchange, the profession must exercise this privilege in the public interest”. Their reasons in paras. 14 et seq in TWU v. LSUC are to the same effect.

Notably, the majority in LSBC v. TWU commenced, at paras. 36, with the proposition from Green v. LSM at para. 24 that the law societies should be afforded “considerable latitude” in their “interpretation of the ‘public interest’ in the context of [their] enabling statute”. The majority then noted in para. 37 the delegation by the legislature of aspects of professional regulation to the Law Society which has “primary responsibility for the development of structures, processes, and policies for regulation”. According to the majority “[t]his delegation recognizes the body’s particular expertise and sensitivity to the conditions of practice. This delegation also maintains the independence of the bar; a hallmark of a free and democratic society.”[xiv] This recognition by the majority of delegated self-regulation as maintaining the independence of the bar is of interest in light of Canada (Attorney General) v. Federation of Law Societies of Canada, [2015] 1 SCR 401, 2015 SCC 7 at para. 86 in which Justice Cromwell concluded that he did not “find it necessary or desirable in this appeal to address the extent, if at all, to which self-regulation of the legal profession is a principle of fundamental justice”.

The majority summarized their conclusion on proper purpose at para. 40 of LSBC v. TWU as follows:

In our view, it was reasonable for the LSBC to conclude that promoting equality by ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to LGBTQ law students were valid means by which the LSBC could pursue its overarching statutory duty: upholding and maintaining the public interest in the administration of justice, which necessarily includes upholding a positive public perception of the legal profession. …

In TWU v. LSUC, the majority said at para. 20 that:

In our view, the LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context, which necessarily includes upholding a positive public perception of the legal profession.

There are several purposes found to be proper by the majority. The first is ensuring equal access to the profession. The second is supporting diversity within the profession. The third is preventing harm to LGBTQ law students. The fourth is upholding a positive public perception of the legal profession.

The majority found support for the appropriateness of these purposes in the respective statutes in both the BC and the Ontario cases. In BC, the support was found in the statutory object and duty under the BC LPA to uphold and protect the public interest in the administration of justice by preserving and protecting the rights and freedoms of all persons and ensuring the competence of lawyers. In Ontario, support was found in the statutory duties to maintain and advance the cause of justice and the rule of law, to act so as to facilitate access to justice for the people of Ontario and to protect the public interest, all in carrying out its functions, duties and powers under the ON LSA.

The Chief Justice, in her concurring reasons, agreed that (i) maintaining equal access and diversity in the legal profession and (ii) preventing significant harm to LGBTQ people who might attend TWU’s proposed law school were statutory objectives. In his concurring reasons, Justice Rowe agreed with the majority and with the Chief Justice that “it was within the statutory mandate of the [law society] to consider the effect of the Covenant on prospective law students as part of its accreditation decision” as the Law Society “has a broad mandate to regulate the legal profession in the public interest”. His view was that the Law Society was “justified in considering the impact of the Covenant on prospective applicants to the proposed law school and, more generally, in considering the role of law schools as the first point of entry to the legal profession.”

In summary, I think it notable that the majority considered that s. 3 of the BC LPA and s. 4.1 of the ON LSA contained broad statutory purposes which could properly be considered in the accreditation decision. The majority applied these provisions in an expansive way considering the public interest, equality rights of law students, the effect of non-merit based admission policies on competence in the profession and the importance of diversity in access to and administration of justice.

Charter Values

A significant difference between the majority and the dissenters was the use of Charter values in the determination of proper regulatory objectives. As the dissenters put it in para. 270 of their reasons in LSBC v TWU, “[e]ven accepting, for the sake of argument, that it is beyond dispute that administrative bodies other than human rights tribunals may consider fundamental shared values, such as equality, when making decisions within their sphere of authority” (Majority Reasons, at para. 46), it is the LSBC’s enabling statute, and not “shared values”, which delimits the LSBC’s sphere of authority.” (Emphasis added)

In contrast, the majority held at para. 41 that:

Indeed, the LSBC, as a public actor, has an overarching interest in protecting the values of equality and human rights in carrying out its functions. As Abella J. wrote in Loyola, at para. 47, “shared values — equality, human rights and democracy — are values the state always has a legitimate interest in promoting and protecting”.

The Chief Justice accepted at para. 140 that “As the collective face of a profession bound to respect the law and the values that underpin it, [the Law Society] is entitled to refuse to condone practices that treat certain groups as less worthy than others”.

Doré and Loyola

Unlike more typical administrative law cases, the TWU cases are not just about whether the law societies acted for improper purposes. For the dissenters, the analysis could of ended there but did not.

For the majority, the Chief Justice, and Justice Rowe, it was necessary to consider whether Charter rights and freedoms were infringed by the refusal to accredit TWU and, if so, to consider whether such infringement was permissible.

The analysis of these issues in the four separate reasons in the two appeals is beyond the scope of this column because the intent of this review is to reflect on law society regulation generally rather than where Charter rights and freedoms are infringed by law society regulation.

So what do we learn from these four cases?

Green, Groia and the TWU cases conclude that a deferential standard applies in judicial review of law society rule-making (Green and Groia) and in judicial review of application of the rules in disciplinary (Groia) and non-disciplinary contexts (TWU).

While not new, Green and the TWU cases make it clear that the law societies have the delegated responsibility to regulate in the public interest. The law societies have significant scope in their determination of the public interest. The legislation which delegates responsibility to the law societies significantly informs the determination of the public interest. While the language is different from province to province, the effect of the legislative language is much the same.[xv]

Green and the TWU cases show that the law societies are entitled to consider specific competence, competence generally, diversity in the profession, non-discrimination in access to the profession, the administration of justice, public confidence in the legal profession and in the administration of justice and must consider the Charter and other rights and freedoms of persons affected by law society decisions.

The TWU cases show that the law societies are generally entitled to consider public interest implications in broader policy decisions and in narrower fact-specific decisions such as law school accreditation.

Groia shows, and Green suggests, that the courts will not defer to administrative or disciplinary rules that are seen as stigmatizes conduct that is not seen as worthy of sanction. The law society must be concerned about public confidence in the professional as well as in in the profession. The dissent in Green was on the basis that the mandatory suspension applied irrespective of the context. The majority did not accept that the rule was to this effect but did not challenge the idea that a rule providing for suspension in any and all circumstances would be unreasonable. The majority in Groia held that it was unreasonable to apply a disciplinary sanction to a good faith, but legally mistaken, position taken on behalf of an accused person.

Green, Groia and the TWU cases show that care must be taken by law societies to reflect on the impacts of their decisions on the professionals that they regulate, the clients served by those professionals, the public, the administration of and access to justice, and the Charter rights and freedoms of all persons.

 

The Chief Justice’s concurring reasons in LSBC v. TWU are her final contribution as a judge of the Supreme Court of Canada. I recommend her reasons to readers as a fitting final contribution.

While the Chief Justice accepted that general competence and diversity within the profession are proper objectives, she did not find them weighty in the particular case. Presumably, her view was affected by the fact that accrediting TWU would allow for additional candidates for licensing, especially from a religious minority, rather than excluding existing candidates.

At the same time, the Chief Justice noted the importance of religious freedom in this case as follows at paras. 129 and 130:

With respect, I cannot agree that the impact of the decision on the freedom of religion of members of the TWU community is “of minor significance”. The decision places a burden on the TWU community’s freedom of religion: (1) by interfering with a religious practice (a learning environment that conforms to its members’ beliefs); (2) by restricting their right to express their beliefs through that practice; and (3) by restricting their ability to associate as required by their beliefs.

These are not minor matters. Canada has a tradition dating back at least four centuries of religious schools which are established to allow people to study at institutions that reflect their faith and their practices. To say, as the majority does at para. 87, that the infringement is of minor significance because it “only prevents prospective students from studying law in their optimal religious learning environment” (emphasis in original), is to deny this lengthy and passionately held tradition. The majority seems to characterize the religious practice at issue in this case narrowly as “studying in a religious environment” (para. 67). In my view, the religious right at issue in this case is broader than that. It is not about merely studying in a religious environment — it is about studying in a religious environment where all members of the community have agreed, through the Covenant, to live in a certain way.

While honouring the freedom of religion, the Chief Justice nevertheless concluded at para. 146 that:

On the other hand, there is great force in the LSBC’s contention that it cannot condone a practice that discriminates by imposing burdens on LGBTQ people on the basis of sexual orientation, with negative consequences for the LGBTQ community, diversity and the enhancement of equality in the profession. It was faced with an either-or decision on which compromise was impossible — either allow the mandatory Covenant in TWU’s proposal to stand, and thereby condone unequal treatment of LGBTQ people, or deny accreditation and limit TWU’s religious practices. In the end, after much struggle, the LSBC concluded that the imperative of refusing to condone discrimination and unequal treatment on the basis of sexual orientation outweighed TWU’s claims to freedom of religion.

In a case like Multani, the claimant was vindicated because the school board could not show that it would be unable to ensure its mandate of public safety. In Loyola, we found that the limitation at issue did nothing to advance the ministerial objectives of instilling understanding and respect for other religions. This case is very different. The LSBC cannot abide by its duty to combat discrimination and accredit TWU at the same time.

I think it fitting that the last contribution of the Chief Justice as a judge of the Supreme Court of Canada was a full-throated affirmation of the constitutional rights and freedoms of all those affected by her decision and a willingness to make a difficult choice that recognized and affirmed their autonomy and dignity.

________________________________

[i] Andrews v. Law Society of British Columbia, [1989] 1 SCR 143, Black v. Law Society of Alberta, [1989] 1 SCR 591, Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 SCR 869. Law Society of British Columbia v. Mangat, [2001] 3 SCR 113, 2001 SCC 67, Edwards v. Law Society of Upper Canada, [2001] 3 SCR 562, 2001 SCC 80, Krieger v. Law Society of Alberta, [2002] 3 SCR 372, 2002 SCC 65, Law Society of New Brunswick v. Ryan, [2003] 1 SCR 247, 2003 SCC 20, Finney v. Barreau du Québec, [2004] 2 SCR 17, 2004 SCC 36, Doré v. Barreau du Québec, [2012] 1 SCR 395, 2012 SCC 12 , Green v. Law Society of Manitoba, [2017] 1 SCR 360, 2017 SCC 20, Groia v. Law Society of Upper Canada, 2018 SCC 27, Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33

CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13 is excluded from the count as it is about copyright rather than regulation of the legal profession.

[ii] As an articling student and as an associate, I worked on Black v. Law Society of Alberta. Decades later, I have been a Law Society bencher during the recent cases. Time passes amazingly quickly.

[iii] Green v. Law Society of Manitoba, supra., Groia v. Law Society of Upper Canada, supra., Law Society of British Columbia v. Trinity Western University, supra., Trinity Western University v. Law Society of Upper Canada, supra.

[iv] Green v. Law Society of Manitoba, supra.

[v] Groia v. Law Society of Upper Canada, supra. Full disclosure, I was a member of the Appeal Panel whose decision was set aside on appeal. I am advised by my friend and colleague Alice Woolley not to comment on this case. Out of respect, fear and affection, I having taken Alice’s advice and have attempted merely to describe relevant aspects of it.

[vi] Law Society of British Columbia v. Trinity Western University, supra. Trinity Western University v. Law Society of Upper Canada, supra.

[vii] Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190

[viii] Green, paras. 19 and 22

[ix] Green, para. 55

[x] Justice Moldaver notable also observed at para. 93 that “When a lawyer alleges prosecutorial misconduct based on a legal mistake, law societies are perfectly entitled to look to the reasonableness of the mistake when assessing whether it is sincerely held, and hence, whether the allegations were made in good faith. Looking to the reasonableness of a mistake is a well-established tool to help assess its sincerity. … The more egregious the legal mistake, the less likely it will have been sincerely held, making it less likely the allegation will have been made in good faith. And if the law society concludes that the allegation was not made in good faith, the second question — whether there was a reasonable basis for the allegation — falls away.

[xi] Justice Côté’s positions in Green, Groia and TWU and Justice Brown’s position in Groia and TWU appear to suggest that they may take a more narrow, perhaps sceptical, view of law society regulation than do other members of the Court. Justice Abella’s position in Green and Groia suggests that she is particularly concerned about stigmatization of individual legal reputations.

[xii] Legal Profession Act, SBC 1998, c 9 as amended

[xiii] Law Society Act, RSO 1990, c L.8 as amended

[xiv] LSBC v. TWU, para 37

[xv] Section 3 of the BC LPA provides that “It is the object and duty of the society to uphold and protect the public interest in the administration of justice by (a) preserving and protecting the rights and freedoms of all persons, (b) ensuring the independence, integrity, honour and competence of lawyers, (c) establishing standards and programs for the education, professional responsibility and competence of lawyers and of applicants for call and admission, (d) regulating the practice of law, and (e) supporting and assisting lawyers, articled students and lawyers of other jurisdictions who are permitted to practise law in British Columbia in fulfilling their duties in the practice of law.”

Section 3(1) of the Manitoba Legal Profession Act provides that the purpose of the Law Society is uphold and protect the public interest in the delivery of legal services with competence, integrity and independence.

Section 4.2 of the ON LSA, requires the Law Society to have regard to the following principles in carrying out its functions, duties and powers: a duty to maintain and advance the cause of justice and the rule of law, a duty to act so as to facilitate access to justice for the people of Ontario and a duty to protect the public interest.

(First published on slaw.ca)

The qualifications required of new Ontario lawyers has been the subject of virtually continuous debate for generations. Starting in the late 1950s, being called to the bar required (i) a law school degree, (ii) practical training through the bar admissions course and (iii) an articling apprenticeship. The bar admissions course came to an end in the 2000s. A law practice program (the LLP) has recently been added as an alternative to articling. The qualifications debate continues with the focus now being whether articling and/or the LLP should continue and, if so, in what form. The central question today is what, other than licensing examinations and graduation from law school, should be required before the call to the bar.

The intent of this column is to provide context for current debate by focusing on the competence mandate of the Law Society and by laying out some of the relevant history and principles that may be useful in thinking about all of this.

My ultimate point is that this is a debate that will never end – because there are no perfect choices and the proponents of one option can always demonstrate frailties in the other options being considered. While it is tempting to press for radical change, it is very difficult to have confidence that the change will actually be an improvement. Keeping focused on the competence mandate, it seems to me the best approach is practical incremental change primarily designed to ensure that new lawyers are competent to serve the people of Ontario and taking care to see that candidates for licensing are treated properly.

A brief history of a relatively long time

Until 1957, the Law Society ran legal education and training in Ontario. After much controversy, an agreement was reached in 1957 whereby university law school education became a requirement. The articling apprenticeship continued. A bar admission course was established. According to the historian Christopher Moore, the establishment of the bar admission course “satisfied the benchers’ continuing requirement for practical training. It also pleased the universities by allowing them to narrow their focus to the purely academic teaching they preferred”[1].

For the next four decades, being called to the bar in Ontario required an academic LLB/JD, practical bar admission course training and exposure to the realities of practice through articling.

In the never-ending debate, the future of articling arose soon after the late 1950s reforms. In 1972, a recommendation was made to Convocation for the abolition of articling[2]. This recommendation was rejected and has again been rejected again on several occasions over the years.

By the late 2000s, the bar admission course had been entirely discontinued and two licensing examinations had been established, but articling continued.

With the substantial increase of candidates and insufficient growth in articling positions over the last 15 years, the LPP was added as an alternative to articling several years ago.

Whether the LPP and/or articling will continue and in what form continues to be debated.

The Mandate of the Law Society – why do we care about qualification to practice?

People who are served by professionals ordinarily need professional assistance because they do not have the expertise to serve themselves. They cannot assess whether someone else is professionally competent to serve them nor whether they have been properly served. This is the central reason that professional regulation exists.

Like all professional regulators, the Law Society has two central mandates; ensuring that members of the legal professions are competent and ensuring that members conduct themselves properly. These mandates are made clear in section 4.1 of the Law Society Act which provides that it is a function of the Law Society to ensure that:

all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide

The professional conduct mandate is pursued by establishing Rules of Professional Conduct, by dealing with professional misconduct by investigation and discipline and by promoting proper professional conduct by practice audits and reviews. Much attention has been spent in recent years on the conduct mandate recognizing that proper conduct is better attained by proactive measures rather than just by reactive disciplinary measures and by the recognition that the law firm policies, procedures and practices ae very important in achieving proper individual conduct.

The professional competence mandate may be thought of as having two aspects. The first is licensing, ensuring that entry-level competence is attained. The second is competence in practice, ensuring that competence is maintained and that specific competence is achieved for specific areas of professional work. Like the conduct mandate, there are a number of ways that the Law Society fulfils and can fulfil the competence mandate.

The Competence Mandate

The Law Society of Ontario has spent much time and effort reflecting on its competence mandate. Its 1994 Role Statement recognized the obligation to govern the profession in the public interest to ensure that the people of Ontario are served by lawyers who meet high standards of learning and competence.

In the late 1990s, the Law Society established two Competence Task Forces. The First Competence Task Force established a working definition of the competent lawyer[3] which is now reflected in the definition of a “competent lawyer” in Rule 3.1 of the Model Code of Professional Conduct and across Canada. As defined in the Model Code, a “competent lawyer” is “a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer’s engagement”. The Model Code provides further particulars in its definition.

The Report of the Second Competence Task Force[4] proposed implementation of what it described as the “competence blueprint” which included focus on both pre-call and post-call learning. As the report said:

The post-call efforts of the profession to maintain and enhance its competence span a broad range of approaches, but virtually all of them engage education, whether it be through experiential learning, continuing legal education, self-study, or the pursuit of advice and mentoring. Pre-call learning is the foundation upon which a career long commitment to learning is constructed.

The bar admission course

Between the reports of the First and Second Competence Task Force, Convocation received and considered the Bar Admission Reform Report[5] which was expressly grounded in the Competence Mandate and the work of the Competence Task Force.

The Bar Admission Reform Report noted that the Bar Admission Course began in 1959 and that its then current form was mandated by Convocation in 1988 approving the “Spence Report”. Following graduation from law school, prospective lawyers undertook a three phase pre-call training program. The first phase was a one-month workshop-based practice skills program addressing professional responsibility and practice management, interviewing, legal research, legal writing and drafting, alternative dispute resolution and advocacy. The second phase was the articling year. The third phase was a three and one-half month seminar program focused on substantive and procedural law, lawyering skills, and how to complete transactions with written examinations. Attendance was originally mandatory but was merely “strongly encouraged” by 1998.

On delivery of the Bar Admission Reform Report, Convocation reaffirmed that there should continue to be “an effective and comprehensive bar admission education and training program” and that articling should be maintained.

To summarize, lawyers called to the bar in Ontario in the 1990s had three years of law school, twelve months of articling and four and one-half months of substantive, procedural and skills training for a total of over 16 months of post-law school legal training.

In late 2003, Convocation received the Report of the Task Force on the Continuum of Legal Education[6] which recommended continuation of articling for ten months but major changes to the bar admission program. Rather than substantive, procedural and skills training and assessment, a five week skills and professional responsibility program and assessment and two licencing examinations were approved. These licensing examinations continue as the Barrister and the Solicitor Examinations. In effect, the choice was made to test for substantive and procedural competence rather that to teach in those areas presumably on the basis either than law schools provided sufficient practical education and/or that students could learn enough on their own.

In 2007, Convocation established a Licensing and Accreditation Task Force which reported in January of 2008. In its consultation report[7], it was noted that the five week Skills and Professional Responsibility Program was reduced to a four week program in 2007 as a result of perceived repetitiveness within the learning modules. Ultimately, Convocation accepted the Task Force recommendation[8] that the Skills and Professional Responsibility Program be replaced with a pre-call five day pre-call professional responsibility and practice requirement integrated with articling and 24 hour of continuing professional development in the first two years after being called to the bar.

Since 2008, the five day professional responsibility and practice requirement has fallen away. Candidates are now required to pass the two licensing examinations and either to article or attend the LPP. The pre-call training in Ontario has been reduced from four and one-half months to five weeks to four weeks to five days and is now eliminated. The Barristers and the Solicitors Examinations remain.

To summarize, lawyers now called to the bar in Ontario have three years of law school, ten months of articling or the LPP and must pass the Barristers and the Solicitors Examinations.

The articling debate

There have long been debates “on the value of articling as a component of professional legal education and recommendations for change”[9]. As long ago as 1972, abolishing articling was proposed[10]. In 2008, the Licensing and Accreditation Task Force consulted the profession on this and other topics. As the Task Force reported in its Final Report:

Respondents overwhelmingly rejected the abolition of articling. They emphasized that a competent profession requires practical training before call to the bar. Articling should not be characterized as a barrier, but rather as a core component of the licensing process.

The nature of the articling debate changed by the late 2000s. Previously, the debate was mostly about the utility and variability of the articling experience. What caused the change was that the number of licensing candidates in Ontario has increased significantly over the last 15 years or so while the number of articling positions has not kept pace.

The substantial increase in the number licensing candidates

In 1972, the annual capacity of the Ontario law schools was in the range of 1,000 to 1,100 students[11]. By 2000, the number of first year law students admitted to Ontario law schools was essentially unchanged at 1,103 students[12]. For more than 25 years, the capacity of the principal gateway to the legal profession in Ontario was unchanged. That this was so is somewhat surprising given the increased population of Ontario and the resulting increase in supply and demand. Something had to give and it did. At the same time, something else happened, namely increased immigration and the acceptance that qualified immigrants had to be treated fairly in professional licensing[13].

From 2000 to 2010, the annual capacity of Ontario law schools increased by over 300 to in excess of 1,400 students. By 2015, the annual law school capacity was nearly 1,550 students[14]. After decades of essentially no change, the annual capacity of the Ontario law schools has increased by 40% over the last fifteen years.

During the same fifteen year period, a new source of licensing applicants opened up. In 2000, only approximately 100 Ontario licensing applicants came through the National Committee on Accreditation (NCA) having attended law school outside of Canada. By 2010, there were nearly 400 NCA candidates. There are now some 650 NCA candidates annually of whom approximately half are Canadians who obtained their law degrees outside of Canada.

Putting this information together, the last 15 years has seen a total increase from approximately 1,000 candidates annually to approximately 2,200 annually[15]. Approximately 45% of this increase is from increased Ontario law school capacity, approximately 25% is from foreign-trained Canadians and approximately 25% is from foreign-trained immigrants. That some 70% of this significant increase is from Canadians shows a significant demand for law school education that was not previously met. This is consistent with pent-up demand after the unchanged Ontario law school capacity over the prior 25 years.

The slower increase in the number of articling positions and the LPP response

Unfortunately, the increased numbers of candidates seeking articles in the late 2000s coincided with the 2008 economic crisis and its aftermath. During this period, larger firms cut back the number of articling positions. This didn’t help.

In any event, while the number of articling positions has substantially increased (to approximately 1,950 by 2016), there has been a gap for some time between the number of licensing candidates and the number of articling positions. It is also the case that, likely given the intense competition for articling positions, some of the increased number of articling positions are less attractive and even exploitative positions, including poorly or unpaid positions.

It was this gap between the supply of and demand for articling positions that was the impetus for the 2012 Articling Task Force which recommended the establishment of the Law Practice Program (LPP) as an alternative to articling. This recommendation was one of the three available responses. The first was to do nothing and accept that the number of articling positions practically limited the number of new lawyers each year. The second was to add a new pathway to licensing, namely the LPP. The third (which was the minority position) was to abolish articling in favour of a limited version of the LPP.

How to think about all of this

It is clear that the establishment of a second licensing pathway (the LPP) didn’t end the never-ending licensing debates. The LPP was only established as a pilot project. Perhaps inevitably when there was a prospect of ending the LPP, there was substantial opposition with a resulting Law Society decision to deliberate more generally on approaches to licensing.

While, as of the writing of this column, there are no proposals on the table, it is reasonably predictable that some or all of essentially the same alternatives will yet again be considered. One option is to continue articling and the LPP with or without reform. Another option is to eliminate the LPP in favour of articling as the only pathway. A third option is to eliminate articling in favour of the LPP in current or different form. A fourth option is to eliminate both articling and the LPP.

The point of this column is to reflect on what is, or should be, in issue in considering the various alternatives.

The competence mandate and fairness to candidates

There are, broadly speaking, two proper perspectives from which to consider these issues. The first perspective is that of the clients to be served by the lawyers that we license. This is the point of the competence mandate described at the outset. Ensuring that those licensed to practice law are competent to practice law is fundamental to professional regulation. Losing track of the competence mandate is unacceptable even if tempting.

The second perspective is that of the licensing candidates[16]. There are two aspects to this perspective. The first is that of candidates generally. For example, all candidates naturally prefer not to pay for licensing requirements especially after enduring expensive law school fees. The second is that there are differences between licensing candidates i.e. the second perspective is heterogeneous. These candidates’ perspective may be thought of as being about fairness; fairness to candidates generally, fairness as between candidates and fairness to specific candidates.

Like all hard problems, proper policy decision-making here isn’t about choosing between the two perspectives. Rather, both perspectives must be considered. However, it is important to recognize generally speaking that the point of licensing is to ensure competence and that the licensing requirement inherently places burdens on prospective licensees. How much burden is properly borne and how that burden should be shared are important questions.

The competence mandate

It seems to me that thinking clearly about the competence mandate requires reflection on the evolution of the licensing process over the last two decades. This evolution is essentially from a four and one-half month bar admission course in which substantive and procedural law and lawyering skills were taught and assessed to the current Barrister and Solicitor Examinations i.e. from teaching to just testing. While it is likely true that law schools generally place greater emphasis on experiential education than they did two decades ago, I’m not aware of good evidence that law schools are now training lawyers to practice law. Indeed, law schools disclaim this responsibility and mission.

For this reason, it seems to me that those arguing for an end to, or substantial reduction of, transitional training (whether through articling or the LPP) should face a heavy burden to demonstrate that proposed changes meet the competence mandate. Said another way, I don’t think it acceptable to have perceived fairness to candidates trump the competence mandate. Indeed, allowing incompetent candidates to enter practice is itself unfair to them.

It would be a terrible irony if the focus on the competence mandate in the 1990s was the precursor to a series of “reforms” the net result of which was to end all transitional training. First ending the bar admission program and then ending articling/the LPP is surely not consistent with the competence mandate.

As between articling and the LPP, it must be acknowledged that neither is perfect. Some articles do not provide proper training. The competence mandate requires that these bad articles not be permitted. We must accept that some articles are better than other articles with the result that the gain from articling is uneven. In contrast, the LPP provides its candidates with a generally consistent experience. The LPP provides both simulated experiences as well as work placements for real life experiences. Unfortunately, we cannot say whether the LPP is generally better at ensuring competence than most articles or whether the reverse is true.

So far as the competence mandate is concerned, there does not appear to be a cogent basis to say that either most articles or the LPP do not provide candidates with sufficient transitional training.

The fairness requirement

The fairness requirement is tricky. For example, fairness underlies the decision to adopt the LPP as a second pathway. It would be unfair to qualified candidates who cannot find articles (because the market doesn’t generate sufficient articling positions) to say that they cannot be licensed. Once licensed, finding work is a different matter. Yet adopting the LPP created a perceived unfairness by creating two classes of candidates. Of course, the alternative of abolishing articling to ensure one common pathway would impose a burden on those who would have articled by taking articling salaries from them and by increasing the total cost of the LPP which is borne by all candidates.

It seems to me that the fairness requirement must be addressed by recognizing that perfect fairness is impossible and that eliminating burdens for some will often impose burdens on others and by focusing on how to practically mitigate unfair burdens. In that spirit, some of the current advantages (the loss of which would be a burden) and the current burdens appear to me to be as follows:

• articles
  • can provide:
    • valuable real world experience
    • increased prospects for post-call employment
    • a salary, which is particularly important given current law school tuition
  • are less accessible:
    • to students who go to law school in other countries and aren’t part of the “system” during law school
    • to new Canadians who may lack language skills and social capital
    • to racialized candidates
  • can be exploitive in terms of income, experience and sexual harassment

• the LPP
  • can provide
    • good training, including simulated training
    • work placements which are generally, but not always, paid and which provide real world experience and increased prospects for post-call employment
    • introduction to Canadian culture and society for new Canadians who are not yet fully competitive in the legal labour market
  • does not generate revenue, unlike articles, and accordingly does not pay for itself and does not provide salaries for its candidates

The bottom line

I suspect that the great articling debate that has now spanned nearly five decades has not reached resolution because there is no good answer. Articling is imperfect. There are no clearly better alternatives. Our differing perspectives lead us to different conclusions because there aren’t clear answers.

If this is so, it follows that it would be better if we stopped trying to find big answers and instead started to work toward smaller pragmatic ways of reducing burdens and unfairness.

In doing so, I suggest that we should accept two primacies. The first is our competence mandate. Any proposed change must bear the burden of showing that the clients of newly called lawyers will be competently served. The second is that unfairness must be thoughtfully and effectively addressed. In this regard, we must distinguish between dealing with unfairness that must be addressed (such as exploitative articles and Human Rights Code violations for example) and throwing babies out with bathwater in well-motivated attempts to ensure that everyone is treated in exactly the same way.

_____________________

[1] Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1791-1997, pp. 259-260. It was the vice-dean of Osgoode Hall who proposed the establishment of the bar admission course. According to Christopher Moore, “[he] suggested that a post-LLB training program could even out the inequities that plagued the articling process”.

[2] Special Committee on Legal Education Report (aka the MacKinnon Report), 1972

[3] First Competence Task Force – Final Report, November 1997

[4] Second Competence Task Force – Final Report, April 1999

[5] Bar Admission Reform Report, June 1998

[6] Task Force on the Continuum of Legal Education Report, October 2003

[7] Licensing and Accreditation Task Force Consultation Report, January 2008

[8] Licensing and Accreditation Task Force Final Report, September 2008

[9] Articling Reform Sub-Committee Report, October 1990

[10] MacKinnon Report

[11] MacKinnon Report, p. 10

[12] Ontario Universities’ Application Centre www.ouac.on.ca/statistics/law-school-application-statistics/

[13] Fair Access to Regulated Professions Act, 2006, SO 2006, c 31. Section 6 provides that “A regulated profession has a duty to provide registration practices that are transparent, objective, impartial and fair”.

[14] To 2000, most of the increase was from the University of Ottawa (216 students) and Windsor (55 students). From 200 to 2005, most of the increase was from the new law school at Lakehead (60 students), Windsor (43 students) and Queens (25 students). Ontario Universities’ Application Centre supra.

[15] This analysis excludes licensing candidates who attended law schools in other Canadian provinces.

[16] Technically, there is a third (and problematic) perspective which is that of existing lawyers whose self-interest is in the limitation of new licensees/minimizing competition. The “issue of numbers” has always been expressly or implicitly part of the licensing debates.

First published on slaw.ca

There has been significant controversy in Ontario over the new Law Society requirement that every licensee “adopt and to abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public”.

The nature of the Statement of Principles controversy

Much of the controversy has focused on concern that the requirement compelled expressions of belief and accordingly raised the issue of freedom of speech. This was not an unreasonable concern for at least two reasons. As Alice Woolley pointed out in her op-ed column published in the National Post, explanatory materials published by the Law Society said that the requirement was for a “personal valuing” of equality, diversity and inclusion. As well, the requirement contained an ambiguity as the word “promote” could be seen to require more than conduct.

Most of those who raised concern about the requirement sought to make clear that they did not take any issue with the policy goals of the requirement and that they accepted that it was fully appropriate that the Law Society advance equality, diversity and inclusion in the professions. Some of those who raised concern did so in terms and with language which suggested that more than free speech was in issue for them. But it is clear that there was a legitimate free speech issue in play and that, not surprisingly for lawyers, freedom of speech mattered.

There was a less common concern also raised which was that the requirement had the effect, or could be seen to have the effect, of adversely affecting proper client representation in matters involving human rights or harassment issues. Fully accepting that adverse effect on proper client representation would be inappropriate, the validity of this concern was much less obvious to me.

Law Society clarification, debate and decision

These concerns were addressed by the release of a Guide which clarified that the statement “need not include any statement of thought, belief or opinion” and that “reference to the obligation to promote equality, diversity and inclusion generally refers to existing legal and professional obligations”. Curiously to me, there continued to be demands for a “conscientious objector” exception to the requirement. While I could understand concern as to whether the Guide was clear enough or authoritative, I continue to be baffled by the concept of conscientious objection to the requirement as clarified. That doesn’t mean that the continued demands were not genuinely made, but I don’t understand them.

Listening to the debate in Convocation, it was clear that the “free speech” issue was not the sole motivation for those supporting the motion seeking a “conscientious objector” exception. For some, the concern seemed to be that the requirement was little more than an irritant for practitioners being a mere “check the box” requirement. Indeed, there was an attempt to amend the motion by those who agreed with this perspective and wanted more to be done rather than less. My view was that the requirement may not be effective for some but that the requirement may be of some help addressing an important problem – and that surely requiring reflection on human rights obligations is no great burden.

A letter to the Middlesex Law Association

After Convocation decided not to adopt a “conscientious objector” exception, there was an interesting series of tweets on Twitter about an six page letter from a London Ontario lawyer published by the Middlesex Law Association. Most were tweets from those appalled by the letter. The letter was taken off the association’s website for a time and then replaced with a limited version of it (although the original is still accessible)[1].

It is not surprising that publication of this letter resulted in strong responses. The writer argues in his letter that (i) the evidence does not support the conclusion that there is systemic racism in the legal professions, (ii) the claim of systemic racism vilifies lawyers and paralegals by labelling them as racist, (iii) the 13 recommendations are a form of unauthorized social engineering, (iv) racism and bullying are just part of life and should be simply be endured and overcome by racialized licensees as others have done before them, (v) the true problem is economic class not race, (vi) white privilege is a ridiculous concept as it relates to white and racialized lawyers and (vii) racialized lawyers who join legal associations based on race or ethnic origin cannot complain that they are not treated equally. In conclusion, the author says that his response to “Diversity, in a Nutshell” is “Who cares about skin colour?” and that he will not draft a Statement of Principles because that is compelled thought and speech and because systemic racism in the legal professions has not been demonstrated.

Alice Woolley has written that she “actually welcome(s) the letter because it reveals the deeper debate, and allows the conversation to be about the real issue”. Proceeding from Alice’s observation, I think that it is worth exploring the perspective and the language used in the letter.

It is useful to recognize that express racism is socially unacceptable in Canada. The social norms of the legal professions do not permit arguments based on claims of racial superiority or inferiority even though some presumably hold those views. These social norms are valuable because they limit offensive behaviour and because social norms can influence cultural values over time. But one of the realities of social norms is that arguments and claims that are inconsistent with established norms are often expressed ways that disguise what is really being said.

The difficulty is in distinguishing between what is sometimes described as “impression management” and genuine attitudes. Examples of “impression management” are obvious. Anti-Semites try to obscure their true views with “evidentiary” denials of the Holocaust. The tropes “I’m not racist but …” and “Some of my best friends are X” are well worn. That racist wolves can dress as liberal sheep is clear.

The “free speech” aspect of the debate over the Statement of Principles illustrated the difficulty in sorting out what is “impression management” and what is true principled disagreement and debate. There was a genuine “free speech” issue to be addressed. Yet it also seemed that some opponents[2] of the Statement of Principles used the free speech argument to avoid saying what they really meant. It is challenging to have genuine good faith debate when one side of a debate legitimately suspects illicit motives on the part of some of the other side and those who are genuinely expressing their views on the other side of the debate fairly consider their views to be disrespected as a result.

The letter to the Middlesex Law Association clearly raises the problem of “impression management”. The core implicit claim is that racialized lawyers and paralegals do not in fact suffer disadvantage in the legal professions and that, if they do, they should suck it up and stop being crybabies. This implicit claim is obscured by a “lawyer-like” analysis of the “evidence” and the claim that the evidence is not persuasive. The writer appears seek to demonstrate “liberal” credentials by asserting that the true problem is economic class rather than racism and by claiming personal “colour-blindness”. As always, it is difficult to know the genuine attitude of the writer. But the letter certainly reads as an exercise in “impression management” in support of a denial that racism exists in the legal professions and, in any event, a denial that racism is worthy of being addressed.

It should not be necessary to have to explicitly say that racism exists, including in the legal professions. It should not be necessary to explicitly say that genuinely addressing racism in the legal professions is necessary. It should not be necessary to explicitly say that white lawyers and paralegals have relative advantages over racialized lawyers and paralegals because racism exists. But it is necessary to do so because “impression management” is a fact of life in discussions about race. The time has come for lawyers and paralegals to clearly acknowledge these truths. The Statement of Principles provides an opportunity to do so and is valuable if only for that reason.

All of this said and meant, I think that there are lessons to be learned from the letter whether one considers the letter to be an illicit exercise in “impression management” or a genuine but misguided attempt to wrestle with difficult issues. The point of the balance of this column is that the Statement of Principles and the other recommendations proceeded on the basis that achieving progress against racism requires cultural change and that achieving cultural change is not possible if one speaks only to those who don’t need to change.

Communication between bubbles

Starting with perspective, the website of the author discloses that he is an older white man in sole practice in London who was called to the bar in 1976. Our society is much changed in the forty plus years that the author has been in practice. The social changes over the decades have not been equally distributed. Toronto, for example, has become particularly diverse as compared to, well, London. Also, it is simply not possible for older white men to truly know the experiences of those who have experienced discrimination or disadvantage on the basis of race, ethnicity or gender. This is not to castigate older white men (of which I am one) but simply to observe that most discrimination is not obvious and is likely not appreciable by those who do not experience it. One of the lessons that I learned as a member of the Law Society working group is that it is important to hear those who are not part of the majority. This is not to say that it is necessary to take everything that is said at face value but it is necessary to listen with an open and sympathetic mind. For those who are prepared to listen, the qualitative evidence of discrimination and disadvantage developed in the working group should be compelling. It should no longer be controversial that we human beings tend to treat those who we consider different than ourselves differently, whether intentionally or unintentionally.[3]

Turning to the language used in the letter, I think that there are important lessons to be learned from the letter if equality, diversity and inclusion are to be better advanced. The author of the letter expresses anger at some of the language used by the Law Society working group. He writes “It is extraordinary to allege that racism is ‘systemic’ in the legal professions in Ontario and an insult to the nonracialized lawyers and paralegals practising in Ontario” and “it is difficult to understand how the Law Society can justify vilifying most of the 58,000 lawyers and paralegals in Ontario by labelling them as racist”. The author also writes “The spectre of “white privilege” is referred to by one of the persons consulted by the Working Group. The concept is ridiculous.”

The author apparently understands that the assertion that there is “systemic racism” in the legal professions to mean that most lawyers and paralegals intentionally discriminate on the basis of race. Similarly, the author apparently understands the claim of “white privilege” is a claim of intentional subjugation of racialized people by white people. Assuming that the author is genuine in these understandings and that he is well intentioned, his reaction is understandable.

But the concept of systemic discrimination (or systemic racism where race is the particular focus) is not about individual intentional discrimination. As the Ontario Human Rights Commission puts it “Racial discrimination can result from individual behaviour as well as because of the unintended and often unconscious consequences of a discriminatory system. This is known as systemic discrimination.”

The phrase “white privilege” is not a legal phrase like “systemic discrimination”. There are no doubt different meanings given to the phrase by different writers and over time. But (as I understand it) the phrase does not necessarily connote intentional impropriety. Rather, “white privilege” is logically the equivalent of “non-white disadvantage”. In a sense, “systemic racism” and “white privilege” address the same thing from different perspectives. Still, it seems easier to accept that others are unfairly disadvantaged than to accept that one is unfairly advantaged.

So one interpretation of the author’s response to assertion of “white privilege” and “systemic racism” is that he is ignorant of what is actually being said – and that it is presumptuous to for him to castigate as he does without spending time to actually understand what is being said. Another interpretation is that the author actually denies that there is disadvantage as a result of race in society rather than just being offended by a wrongly perceived claim of wide spread intentional racism. And of course, these parts of the letter may simply be an exercise in “impression management”.

But it may not be wrong to perceive that there is intended to be some sting in the language of “white privilege” and perhaps even in the language of “systemic racism”. Naturally, those who spend time and thought addressing unfair disadvantage are more likely to have suffered disadvantage themselves or, at least, to be sympathetic to those who have. It would be too much to always expect the language of a Mandela or of a Martin Luther King, or clinical academic language. The unfairness and wrongness of racial discrimination will out in the language used. And no doubt some racism is intentional and the failure to address unintentional racism is itself an ethical failure. Language choices fairly reflect these things. Those like me who are in a position of advantage are not well placed to criticize or to complain.

But the problem is that we are mostly in bubbles. Our perspectives and our language are different in our respective bubbles. This matters because culture change requires that communication between the bubbles. Those who have suffered unfair discrimination need no persuasion nor reminder of that reality. It is those who have advantage from whom assistance is sought. And those who are actually racist will not change. The goal must be to better enlist those who already want to help and to engage with those who have not thought much about these things but are people of good will.

It is not possible to know which category our author is in fact. While it is tempting and may be right to assume the worst, recognizing differing perspective and use of language opens the possibility that we can be too quick to dismiss the possibility that someone prepared to spend time and thought writing about this issue may want to do the right thing but be angered by what feels to be unfair castigation. In any event, it actually doesn’t matter what the right answer is for any specific person. What matters is failing to enlist the support of those whose support is possible.

On that note, I recently attended an educational session that addressed diversity and inclusion. A presentation entitled How microaggressions are like mosquito bites • Same Difference[4] was shown. The presentation is masterful and is well worth listening to. With grace and good humour, it allows the perspective of the disadvantaged to be better appreciated by the advantaged.

Going forward

To return to the Statement of Principles controversy, there seems to be broad consensus that the equality, diversity and inclusion ought to be advanced by the legal professions. No one who I have heard argues that there should be any compelled speech. My view is that the ambiguity has been removed about that. What is now needed is to return to the beginning which was to enlist the help of those who already share the goal and to encourage those who might be persuaded to share the goal to help as well.

_________________________

[1] See the December/January Middlesex Law Association newsletter at page 30. Presumably in an attempt to somewhat distance the Association from contents of the letter, the index to the revised newsletter now lists the letter under “Opinion and Letters to the Editor”.

[2] Particularly the more hyperbolic ones.

[3] Robert Sapolsky has recently published Behave: The Biology of Humans at our Best and Worst. Chapter Eleven entitled “Us versus Them” which is a compelling discussion of “The Strength of Us/Them” and the reality that we humans are programmed to react differently to those with whom we identify and those who we see as “others”.

[4] The term “microaggression” is another term that seems to me to risk loss in inter-bubble translation highlighting as it does malignant intentionality rather than adverse impact. I say this at risk of being thought to demonstrate “white fragility” which is another phrase that bears similar risks.

(first published on slaw.ca)

Fiduciary law deals strictly with conflicts of interest. A fiduciary is not permitted to have an interest that conflicts with the duties owed to their beneficiary unless the conflict and all material facts have been disclosed and consent is obtained Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2011 SCC 23. Where a fiduciary benefits without consent, the fiduciary is ordinarily required to disgorge the benefit whether or not the beneficiary’s interests have been compromised. Strother v. 3464920 Canada Inc., 2007 SCC 24

The Rules of Professional Conduct are no less strict. It is professional misconduct for a lawyer or paralegal to act where their self-interest conflicts with their duties to their client without proper consent. Some conflicts are not waivable. Transactions with clients are strictly regulated even where the lawyer or paralegal does not act on the transaction[1].

It is ironic that client conflicts are treated so seriously while the inherent conflict in self-regulation is mostly ignored. Commonly, this conflict is not really recognized or understood. Some think that the public interest is virtually invariably the same as the interest of the legal professions. Pressures from stakeholders and the realities of elections affect how elected benchers perceive issues and their roles.

Examples of conflicting self-interest in regulation

There are many examples which illustrate this inherent conflict. Describing a few helps make the point. In June, a proposal was made to Convocation in Ontario to allow charities and not-for-profits to hire lawyers and paralegals to provide legal services to the public. The idea was to attempt to address unmet legal needs by permitting those who currently serve people with other social, health and economic needs to add legal services to their offerings. Unlike the many proposals put to Convocation, this proposal provoked an immediate demand from legal stakeholders for time to consider and address the proposal, no doubt reflecting recent ABS debates. The proposal was deferred.

While I’m quite hopeful that lawyers will see the merits of this “civil society” proposal with fuller information and time to reflect, there is a long history of the private bar reacting defensively to other ways of providing legal services. In his book The Law Society of Upper Canada and Ontario’s Lawyers, 1797-1997, Christopher Moore details the early days of legal clinics in the 1970s. As Moore describes, the intent of these “storefront clinics” reflected the belief that legal assistance had to be delivered to poor communities through community networks and agencies which integrated legal advice with other kinds of assistance offered from accessible storefront ‘clinics.’ In 1971, Osgoode Hall Law School, with support from the Ford Foundation and the Canadian government, opened the Parkdale legal clinic. The following quotation from Moore’s book describes the reaction:

‘We were against this, we were violently opposed to this,’ recalled Gibson Gray, a future treasurer then on the legal aid committee. `They were … taking work on at the clinic … rather than having the work done by lawyers, traditional lawyers.’ That summer, there were rumours that the Law Society might seek an injunction against the law school’s storefront clinic, and benchers urged the professional conduct and unauthorized practice committees to investigate. …

… The Law Society’s irritation moved it to consider reclaiming the name `Osgoode Hall’ from the law school, but clinical legal aid (the phrase which soon replaced ‘poverty law’) proved irresistible. The Law Society, able neither to prevent nor to control their emergence, soon acknowledged that clinics were no real threat to private law practice, for they usually served a different clientele and often did counselling and community organizing work that extended well beyond legal practice. …

The reaction by the private bar to student legal clinics in the 1970s and to new practice structures in the 2010s[2] illustrates that self-interest has material effected consideration of new forms of legal service delivery. This is not to say that legitimate issues were not raised. In the 1970s, the way that student legal aid was brought forward was a challenge to the Law Society’s regulatory authority. Accordingly to Moore, “Arguing that supervising law students working in a storefront legal clinic was part of the law school’s educational mandate, Dean Gerald LeDain took the position that seeking permission from (or even informing) the Law Society was unnecessary”. Similarly, there are reasons to think carefully about allowing new forms of for-profit legal services[3]. But just as it is no answer to a disgorgement claim to say that no harm was suffered, it is no answer to concerns about the integrity of self-regulation to say that protectionism often leads to examination of legitimate issues.

Recent revisions to the advertising and referral fee rules provide another example. Over recent years, the traditional personal injury bar has faced significant new competition for clients. Significant investments were made in brand advertising. Referral fee-based business models capitalized on and fueled the advertising. Traditional ways of attracting clients were disrupted. The reaction of the traditional personal injury bar was to seek regulatory intervention. This is not at all to say that public and consumer interests were not engaged by these changed advertising and referral fee practices. They clearly were. And the traditional personal injury bar was no doubt motivated in part by concerns about the interests of injured people. But the fact is that these issues are, in part, reflective of competitive pressures between different parts of the private bar. The Law Society is currently considering contingent fee arrangements which are commonly acknowledged to require reform. The personal injury bar has a significant self-interest in contingent fee regulation. It is fundamentally important that the Law Society deal with these issues in the public interest and in the interest of injured people recognizing that access to justice, procedural and substantive, is what must drive deliberations about contingent fee arrangements.[4]

The recent Family Legal Services Review report by Justice Annemarie E. Bonkalo raises another cogent example. Lawyers and paralegals have been regulated together by the Law Society since 2007. Lawyer benchers and paralegal benchers are elected by their respective professions. While there are tensions within Convocation, I think that it is generally thought that this regulatory approach has worked well. Common perspectives on and approaches to appropriate professional conduct makes practical sense as does integrated professional conduct investigation and discipline. There are obvious synergies in licensing and ongoing professional competence. However, lawyers and paralegals compete for clients in some areas of practice. The extent of the permitted paralegal scope of practice engages the self-interest of both paralegals and lawyers.

These self-interests are obviously engaged by the Bonkalo Report. Lawyer benchers have been the target of organized communications from the family law bar, all framed in the public interest. Lawyer stakeholder groups are making forceful submissions against expansion of the paralegal scope of practice. I would be surprised if paralegal benchers are not receiving similar communications from paralegals. Paralegal stakeholder groups are naturally advocating for expanded scope of practice. To be clear, most benchers seek to rise above self-interest and to genuinely address the public interest in effective and fair resolution of family breakups. But my observation is that it is hard both for paralegals and lawyers to do this without their judgments being affected by self-interest. This is not surprising. Fiduciary law and professional conduct rules exist because we understand human nature and the cognitive biases that of us have.

These are but three examples of conflicting self-interest in self-regulation. Other examples are not difficult to find.

The need to act in the public interest and to reform governance

The point of this column is two-fold. The first is that each of these examples is live. It is important that the Law Society, the legal professions and stakeholder groups recognize how these issues need to be addressed. Just because self-interest is engaged doesn’t mean that legitimate issues are not raised. But professionalism and the integrity of self-regulation requires disciplined focus on the public interest and the interest of those we serve. If we do not regulate ourselves properly, we can expect that someone else will.

The second is that we should think hard whether our approach to governance effectively addresses conflicting self-interest and assures proper self-regulation. In Ontario, a Governance Task Force is currently charged to review of and make recommendations respecting the Law Society of Upper Canada’s governance structure. This question of how to address regulatory self-interest should be addressed by the task force,

A modest regulatory innovation might be to use public benchers as a formal check on self-interest. There are eight public benchers appointed to Convocation in Ontario. In meetings with over fifty voting members, these public members have an important role but a limited voice. Even without increasing the number of appointed members, these “lay” benchers could be formally responsible as a committee to consider and publicly report to Convocation on matters where regulatory self-interest is significantly engaged. Simply requiring that the public interest be addressed by public members should have a salutary effect.

Manitoba provides a recent example of significant governance change[5]. Manitoba has 23 benchers. There are 12 elected benchers, a bare majority. Six lay benchers are independently appointed. Four lawyer benchers are appointed by the other benchers applying criteria required to be established “such as the need for representation by region, demographics, type of law practice, or professional, leadership or management skill”. The Dean of the law school and an articling student are benchers as well.

In 2014, the Canadian Bar Association Futures Report recommended at pp. 50-51 that:

The governing bodies of law societies should be made up of elected lawyers, as well as a significant number of appointed lawyers and non-lawyers. The appointed governors should be selected by an independent appointment process designed to fill gaps in experience, skills and diversity.

There are no doubt other ways that governance reform could usefully address the problems of self-interest in self-regulation. Thoughts and suggestions by way of comment to this column would be helpful.

To every action (and sometimes even to an inaction), there is a reaction

It is easy and lazy to be apocalyptic including about the prospect of losing self-regulation in Canada. There is an ongoing risk of that but, at least for now, no real pressure for change. But failing to properly undertake responsibility in the public interest can result in loss of authority.

In his book, Moore provides an example. The resistance to the legal clinic model by the practising bar and the Law Society in the 1970s was followed by the appointment by the Ontario government of Justice John Osler “to investigate the delivery of legal services to disadvantaged groups, including aboriginal communities and isolated regions. Osler’s report laid the groundwork for a permanent network of Ontario legal clinics”. As Moore further notes “Osler also recommended that legal aid be transferred entirely from the Law Society to a publicly appointed board which might be more open than the lawyers to other innovations in delivery of legal services”.

Moore ends his discussion of this history noting that Law Society leaders subsequently acknowledged “in their way, that the Law Society alone no longer set the agenda on legal aid and much else affecting the profession. The principle of self-government endured, but authority over the legal was becoming permanently subdivided”.

I have previously written that unmet legal needs are a significant challenge to self-regulation.[6] This is not new as Moore describes. Failing to address legal needs not effectively addressed by the private bar resulted in loss of Law Society responsibility in the 1970s. Failing to do the same 40 years later risks similar loss. Given the extent and significance of unmet legal needs in family law, a protectionist response to the Bonkalo Report likely results in loss of authority over who may provide legal services in family law matters. This is not to say that Justice Bonkalo’s recommendations should necessarily be accepted. The point is that the self-interest of lawyers or paralegals is the wrong perspective from which to address the question.

The same can be said about contingent fee arrangements. The personal injury bar is vitally concerned with contingent fee arrangements. Ontario benchers will no doubt want to reflect carefully on what is said by personal injury lawyers in the current consultation. Their expertise and experience requires that benchers listen carefully. But their understandable self-interest requires independent consideration of recommendations for reform in the public interest. Again, failure to do by the Law Society so will likely result in loss of responsibility and authority.

Doing the smart thing and the right thing

It is clear that self-regulation can be lost all at once or bit by bit. For those who consider self-regulation to be essential to independence of the bar, the need for governance mechanisms and policy decisions to ensure that the public interest is advanced should be powerful. The same should be true for those who merely see value in self-regulation[7]. On an issue by issue basis, members of the private bar and their representatives should recognize that protectionist instincts that result in self-interested regulatory decisions can be counter-productive in the longer run. And in any event, those who have accepted responsibility in the public interest rather than the interest of their profession should of course act accordingly.

 

[1] Rules of Professional Conduct, Section 3.4, Paralegal Rules of Conduct, Rule 3.04

[2] See Alice Woolley’s slaw.ca column Bencher Elections – the Challenge to Self-Regulation’s Legitimacy

[3] Principle, not Politics

[4] Contingent Fees, Portfolio Risk and Competition – Calls for Reform

[5] Sections 6 and 7 of The Legal Profession Act, C.C.S.M. c. L107

[6] Unmet Legal Needs – The-challenge to legal practice and to self-regulation

[7] Independence and Self-Regulation

(First published on slaw.ca)

It is difficult for prospective clients to obtain good information about lawyers and paralegals. The significant growth of brand advertising is cogent evidence of this. Potential clients assume that brand is evidence of quality when that may well not be the case. Substantial sums are paid for brand advertising because it works. Similarly, the advertising of dubious awards and reassuring photographs evidences that lack of genuine information about quality.

Concerns about lack of information

A recent market study in England and Wales by the Competition and Markets Authority said that:

… consumers generally lack the experience and information they need to find their way around the legal services sector and to engage confidently with providers. Consumers find it hard to make informed choices because there is very little transparency about price, service and quality … lack of transparency weakens competition between providers and means that some consumers do not obtain legal advice when they would benefit from it.

A similar conclusion was reached based on Ontario research in the 2010 Report of the Ontario Civil Legal Needs Project:

A significant challenge is to find ways to encourage more people to receive the full benefit of the existing resources available to them. People often can’t find legal help because they don’t know where to look, or because they perceive they won’t be able to afford it.

In a recent column, I wrote about market failure as a consequence of lack of consumer information potentially leading to a race to the bottom as high quality lawyers and paralegals (the “peaches”!) are unable to distinguish themselves from “lemons”.

What might help potential clients?

What can usefully be done about the lack of available information as to quality? There are a number of possibilities. One is to encourage genuine referral services (as opposed to mere brokerage services) and genuine ranking services (whether based on peer, client or other assessments) that assist potential clients in finding appropriate assistance.

Another is to move toward enhanced credentialing or limited licensing as a signal of expertise. Unlike some other professionals, all lawyers have unlimited licenses to practice law yet few, if any, have the competence to practice in all areas of the law. Beyond word of mouth and self-serving advertising, how is a client to figure out who to retain? While licensing tells potential clients that minimum standards of competence have been met and provides some assurance of professional conduct, the mere fact of licensing does not allow potential clients to distinguish between individual licensees.

The Law Society is a source of some useful information beyond the mere fact of licensing. The certified specialist program provides an indication of expertise. Public Law Society Tribunal records provide some information with respect to past professional conduct.

A look at 2016 LSUC complaints information

With the issue of useful information in mind, I read with interest the recent LSUC reports 2016 End-of-Year Report for the Professional Regulation Division and the Analysis of Complaints in Professional Regulation in 2016.

The number of complaints[1] received in the Professional Regulation Division has remained stable in absolute number at slightly less than 5,000 per year despite increasing numbers of lawyers and paralegals. The number of complaints per lawyer and paralegal in private practice is very similar at just over 10% for each type of licensee. The trend is generally downward for both over the last six years.

In 2016, the Intake Department dealt with some 4,400 complaints. 2,152 complaints were sent for investigation. 2,243 complaints were closed in the Intake Department. Of the 2,243 closed complaints, 236 were marked as “resolved” suggesting that there was something to resolve but not something meriting formal investigation. The balance were closed for a number of reasons including the conclusion that no further regulatory action was required, the absence of jurisdiction and the formal (or practical) withdrawal of the complaint.

In 2016, 2,018 new complaints were instructed for investigation[2] and investigations staff closed 2,334 instructed complaints. Perhaps not surprisingly, client service issues are the most common followed by integrity, governance and financial issues. To state the obvious, potential clients are interested in knowing whether they will be well served by professionals with integrity who are prepared to be governed and deal properly with financial matters.

How investigated complaints are ultimately dealt with is interesting. Over the last three years, only between 10% and 15% of investigated complaints have been transferred for prosecution. During the same period, approximately 40% have been closed on the basis that there is no evidence or insufficient evidence warranting regulatory action.

There is a substantial number of investigated complaints where the result is some action short of prosecution. Some are closed with diversion such as a Regulatory Meeting, an Invitation to Attend, a Letter of Advice, a recommendation for a practice or spot audit or by an undertaking from the licensee[3]. In the last three years, some 2% to 4% of investigated complaints have been closed investigations with diversion. A more substantial proportion of investigated complaints (approximately 20% to 30% over the last three years) have been closed with a staff caution or with best practice advice. The bottom line is that approximately one-quarter to one-third of investigated complaints raise regulatory issues and result in a regulatory response short of prosecution.

There are different types of complaints information

To make the obvious point, the Law Society has information about lawyers and paralegals that is not publicly available and which might well provide useful information to prospective clients. But the obvious counterpoint is that some of the same information could be unfairly prejudicial to the licensee if publicly available.

There is a spectrum of regulatory engagement from (i) mere receipt of a complaint to (ii) instruction of a complaint for investigation to (iii) determination after investigation that regulatory action is merited short of prosecution to (iv) prosecution. There was a time when our regulatory process was so lawyer-centric that even prosecutions and findings of professional misconduct were not transparent. That time has passed and the question now arises, given the genuine difficulty faced by potential clients in obtaining information, whether the current balance is the appropriate balance.

Discussion in England and Wales

Greater disclosure by legal services regulators is currently being discussed in England and Wales. The 2016 Interim Legal Services Market Study Report of the Competition and Markets Authority asked[4] “Are there any measures of quality that can readily be collected by regulators or government … on observable trends in quality of legal services?”. The Solicitors Regulation Authority (the SRA) responded saying that there are “a number of other indicators regulators can use, which cumulatively can give an indication of quality” including claims against the compensation fund, insurance claims and complaints data. The SRA also said:

Our Codes contain the minimum requirements for those we regulate, all of which are mandatory. We also require diversity data to be published. We are currently considering what information about SRA regulated individuals or firms we should publish or require firms or individuals to publish, and are planning on releasing a discussion paper by the end of the year subject to decisions being taken by our Board. The areas we are looking at include regulatory action, complaints data, insurance claims data and accreditations.

The Law Society of England and Wales[5] responded to the subsequent SRA discussion paper by raising concerns about accuracy and relevance and suggesting that it was better for law firms to voluntarily provide information in the competitive market. Of course, this approach would mean that negative information about solicitors would not be made available.

Thinking about disclosure

It is to be expected that lawyers and paralegals would be uncomfortable with greater transparency of complaints or claims information. We imagine this from our own perspective and fear disclosure of unfair or misleading information (and even true but embarrassing information). For example, it would be natural for family law lawyers to be concerned about disclosure of complaints from the opposite party given the often dysfunctional nature of family law proceedings.

That said, it is clear that further and better information about lawyers and paralegals is needed. From the client perspective, better transparency is desirable while, of course, protecting confidential and privileged information.

Perhaps the practical answer to concerns about disclosure of unfair or misleading information is careful focus on what should be disclosed. If there is only disclosure about investigated complaints which have led to a regulatory outcome then what would be disclosed would be the result of investigation and evaluation. Fear of disclosure of malicious or unfounded complaints would not be justified.

It might also be worth considering whether there should be disclosure of single or stale matters. It may be that little if any real information is provided if a single matter is disclosed or if a relatively ancient episode continues to be disclosed. Treating stale matters as such is somewhat analogous to the evolving “right to be forgotten” that is of increasing importance in which so much personal information is available and for so long on the internet. As well, it may be worth considering whether contextual information could also be provided, for example the average number of such complaints for licensees generally or, say, family law lawyers specifically.

Up to this point, the discipline process has not been discussed. The main point to be made here is that allowing transparency about some investigated complaints and a formal discipline record are different things. There is no need and no apparent reason for the information available to the public also to be information that is treated as relevant by the Law Society Tribunal in assessing appropriate discipline penalties. There is good reason to limit Tribunal panels to consider only findings of professional misconduct by prior panels.

But the “right to be forgotten” discussion raises a point that some have made about formal discipline histories. To use an extreme example, should there continue to be transparency about a reprimand given 25 years ago absent any subsequent proceedings? Discipline panels routinely conclude that a stale disciplinary history is irrelevant for current purposes. Perhaps it should also irrelevant for the public purposes.

If it is accepted that potential clients have insufficient information to properly assess the quality of lawyers and paralegals (leaving them instead reliant on brand advertising, irrelevant and misleading “awards” and photographs of reassuring faces), then it follows that we should be thinking carefully about whether further information can be disclosed. It also follows that it is proper to think about the utility and the fairness of further disclosure.

It should be recognized that lawyers and paralegals will almost inevitably resist disclosure of complaints information, even investigated complaints leading to regulatory action. But it should also be recognized that there is another perspective that must be considered which, as always, has no advocate.

[1]      Complaints can come from clients, other parties, other lawyers, judges and the Law Society itself. While professional regulatory process is largely reactive, the Law Society itself initiates the complaints where matters come to its attention that may deserve further consideration.

[2]      The Law Society Act provides that the Law Society has certain investigative powers where the conclusion is reached that there is sufficient information indicative of professional misconduct or lack of capacity. In these circumstances, PRD says that a complaint has been instructed for investigation.

[3]      Some of those transferred for prosecution are also closed with diversion.

[4]      This interplay between the competition authority and the legal services regulatory provides an example of a productive interplay in which competition issues are raised while the regulator keeps independence.

[5]      Unlike our law societies, the Law Society of England and Wales is the representative of and advocate for solicitors.