Rhetoric and Realities: What Independence of the Bar Requires of Lawyer Regulation

Abstract

The Canadian legal profession is largely self-regulating. Provincial law societies governed by lawyers elected by their peers set the standards for admission to the profession and for ethical conduct, and investigate, prosecute and adjudicate allegations of professional misconduct by lawyers. Advocates for this regulatory structure rely on the concept of “independence of the bar”, the idea that lawyers must be free from any external interference with their representation of clients. Critics of the regulatory structure, meanwhile, argue that independence has a broader meaning than the advocates suppose and that, in any event, the self-regulatory structure of the Canadian profession is not necessary to ensure independence. This paper presents the varying interpretations of independence of the bar and suggests that while the advocates for self-regulation have a more justifiable understanding of independence than do critics, the concept of independence of the bar is not itself central to assessing the validity of any particular regulatory scheme. Rather, the things that independence should protect – the ability of lawyers to be zealous advocates for clients within the bounds of legality – should be used to assess the adequacies of any regulatory scheme. Does regulation ensure that lawyers fulfill their duty of zealous advocacy? Does regulation ensure that lawyers remain within the bounds of legality? Does regulation ensure access to justice? With these criteria in mind, and using recent changes to the regulation of lawyers in England and Wales as a comparator, the paper then analyzes the adequacy of regulation of Canadian lawyers with respect to competence, the general structure of professional regulation and access to justice. Based on this analysis, the author proposes changes to improve lawyer regulation in Canada. These changes do not abandon self-regulation. However, they include separating the adjudicative function of the law societies into a distinct dispute resolution entity with expanded regulatory powers in relation to hearing complaints brought directly by the public, addressing a broader range of matters in relation to competence and client service, and providing remedies beyond sanctioning lawyers. The changes would also include the creation of a legal regulatory review office in each province, governed by lawyers and non-lawyers alike, to exercise some constrained oversight and review of law society activities. Finally, the changes propose a variety of ways to enhance access to justice such as focusing law society activities on improving the functioning of the market for legal services through providing greater information to clients.