Among the fundamental issues facing our profession are the proposal for non-lawyer ownership of law firms, the competence of new entrants, Law Society of Upper Canada investigations and transparency, the continued independence of the bar, access to justice in civil and family cases, and the important role of technology in the delivery of legal services.
Of those issues, two are critical to strengthening the public trust in our self-governance: the competence of new entrants and regulatory investigations and transparency.
When it comes to competency, it’s time to significantly raise the entrance standards to the legal profession. Doing so is in the best interests of the Ontario public.
The competency of a growing number of newly admitted lawyers appears to be of concern. Some do not appear to possess the necessary understanding of the applicable law and the prevailing legal standards of practice and procedure in various areas.
Whether as a result of different criteria of law school education outside of Canada, the lack of adequate articling and training, bar entrance standards or a combination of some or all of these factors, a seemingly growing number of newly admitted lawyers may not have the requisite knowledge, understanding, and skills to competently handle some files. In some matters, newly admitted lawyers appear to be over their heads and they do not have the necessary supervision of experienced counsel.
The concerns about the competency of some newly admitted lawyers increases the cost of resolving matters, whether transactional or litigation. It becomes more difficult to process a file in an efficient manner when faced with counsel on the other side of a file who lacks the requisite knowledge, understanding, and skills.
We need to have a better understanding of the different criteria for law school education outside of Canada, how the lack of adequate articling and training affects the required skills of new entrants, and how we should change bar examination entrance standards.
Both the public and the administration of justice will benefit from higher entrance standards for newly admitted lawyers.
When it comes to policing and transparency, the law society should strive to take all steps necessary to handle serious misappropriation cases in a timely, vigorous, and focused manner.
To be clear, I am not suggesting that the law society is not currently doing that. In my opinion, the problem is we do not seem to have the necessary information to make that decision on an informed basis. To me, there is insufficient transparency.
Our regulator should strive to be as transparent as possible in the steps it takes to identify and deal with serious offenders well before they cause significant losses. It should allocate investigative resources towards identifying the most serious cases involving those who engage in trust-fund misappropriation and major breaches of ethics.
The vast majority of Ontario lawyers are not committing serious offences. Despite its best intentions, policing all lawyers with what sometimes may feel like a heavy hand is not a worthwhile strategy for identifying offenders. The law society should police the bulk of the legal profession in a more targeted fashion.
Lawyers are, by their nature, good at learning. We can ensure accounting compliance by lawyers through more strategic continuing education about best practices and training. Doing so will be far more effective than a policing approach.
Transparency is a key component. Our regulator should take steps to be more transparent about investigative activities in serious cases. Transparency does not mean the disclosure of any confidential information or the identity of suspects. But in my opinion, transparency does mean keeping Ontario lawyers and the Ontario public informed about active investigations, including what steps the law society has taken and plans to take as well as the status of its activities.
Providing the necessary reasonable transparency, without disclosing confidential information, does not have to contravene the Law Society Act. It is an important matter of governance. It may also be time to consider broadening the law society’s statutory powers to carry out its mandate in such a manner.
This is a fundamental aspect of the role of the law society. It is consistent with the rule of law and our democratic principles. Governments at all levels are subject to annual audits of their activities and other transparency rules. The law society should not be different. Doing so will strengthen the public’s trust and will also strengthen the legal profession’s ability to continue to govern itself in the public interest.
Ben Hanuka practises commercial litigation and arbitration in Toronto.
