BarTalk February 2005
Volume 17, Number 1

Public and profession both need strong champions

We live in a world where the right to professional self-regulation is put to the test every day; that right can be taken away if there is any question of conflict between the separate roles of public interest protector and advocate for the profession.

This past December, Sir David Clementi released his much anticipated final report, heralding major reforms to the regulation and discipline of lawyers in the UK. Among the most significant recommendations were the creation of a new Office for Legal Complaints – an independent body to handle all consumer complaints about providers of legal services – and a Legal Services Board to oversee the workings of the Law Society of England and Wales and the Bar Council as regulators of solicitors and barristers, respectively. He also recommended both regulatory bodies separate out their regulatory and representative functions, to avoid the appearance of conflict in promoting lawyer interests while also being responsible for protecting the public interest. (www.legal-services-review.org.uk)

Australia has also experienced government intervention in the regulation of lawyers in three states, resulting in removal of some regulatory functions and all complaints handling to separate bodies. In Tasmania, self-regulation was removed entirely.

Closer to home, in June 2004, the Supreme Court of Canada dismissed an appeal which sought to uphold the Barreau du Quebec’s immunity from civil liability in relation to a specific disciplinary case. The Court found that while it was clearly an exceptional case, the actions of the Barreau were “not up to the standards imposed by its fundamental mandate, which is to protect the public.” (Finney v. Barreau du Québec)

Where there is any question about in whose interest a regulator acts, there is a risk to an entire profession. The key is to ensure there is no perceived conflict between the roles of public protector and advocate for the profession. To ensure the right to self-regulation requires a strong law society seen by the public as acting openly and fairly as a protector of the public interest, and a strong bar association advocating on behalf of the interests of lawyers. “That separation has existed in Canada for decades,” said Law Society President Ralston Alexander, QC.

The Law Society of B.C. is proud of its record of timeliness in managing complaints and in the degree of public access it provides to citation information, hearings and panel reports. The Canadian Bar Association is proud of its strong presence both provincially and federally, advocating the interests of lawyers to government, law societies, and in the courts. What is needed to ensure this role continues, however, is the support of the profession. In the words of CBABC President Michael Woodward, “The CBA is only as strong as the number of lawyers who choose to support us.” Join the CBA online at www.cba.org/bc.

This article was published in the February 2005 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.