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Sustainability of self-regulation scrutinized

|Written By Anita Balakrishnan
Sustainability of self-regulation scrutinized
Rebecca Bromwich says that government should support self-regulation in the public interest.

Bencher candidate John Nunziata says he thinks the provincial government may have to intervene in the legal profession’s self-regulation model following the bencher election ending April 30.

Nunziata told Law Times that he has heard the proposition of reviewing the Law Society Act discussed among Ontario’s members of provincial Parliament who watch the legal profession. However, Law Times requested interviews with 14 MPPs who have backgrounds as lawyers and none accepted.

Several MPPs, including a spokesperson for Attorney General Caroline Mulroney, repeated the same message.

“The Law Society of Ontario has a mandate to regulate lawyers and paralegals in the public interest. Questions regarding the law society, the bencher election and the regulation of lawyers should be directed to the law society. The attorney general looks forward to working together with the law society in the future on legal issues that affect the people of Ontario,” said an email statement.

Nunziata, a former member of Parliament, would not reveal which MPPs he had spoken to.

Still, Nunziata says he thinks that issues such as low voter turnout, a budget deficit and the divide over the statement of principles requirement could draw the attention of Queen’s Park.

“The fact that the public is not on the side of lawyers — because most people have a negative opinion of lawyers — there are politicians that would say, ‘Well, let’s review what’s going on here.’ For one, conservatives do not believe in running deficits in principle,” says Nunziata.

Rebecca Bromwich, a faculty member at Carleton University in Ottawa who is running for bencher, has studied the topic of self-regulation and its ability to deal with complicated issues such as money laundering.

She concluded, in that research, that government should support self-regulation in the public interest. She says she is not privy to any comments from MPs about the LSO, and said that although Canada’s self-regulation model differs from other countries, the public and political will has typically not supported changing the model.

Bromwich also said there are some positives to self-regulation, and that critics of self-regulation may not consider how a government would undertake the same task. She says that centralising regulation in the government might be at odds with a more conservative political view.

“I think every election is important. I think it would be great if lawyers think it is important,” she says. “Benchers reduced the size of Convocation before this election, so it seems like if there are generally views of reducing the size of the regulatory body, most people seem to be the same page. It’s whether the government should be the one doing it.”

Nunziata says the LSO is an outlier compared to professions that are regulated by an appointed board, rather than a large election, such as the one taking place now.

“It’s important for lawyers to vote, it’s important for the law society to be truly representative of lawyers and paralegals,” he says. “Yes, one of the mandates is to govern in the public interest, but I think there is also an obligation to make sure the needs of lawyers and paralegals are addressed as well.”

The law society’s governance task force is currently considering options to shrink the number of benchers in Convocation.

Susan Tonkin said in an e-mail on behalf of the LSO saying, “The Law Society governs Ontario’s lawyers and paralegals in the public interest. Self-regulation strengthens the independence of the bar and protects the rule of law, which are two critical underpinnings of a democratic society. We look forward to continuing to work with the government and other legal stakeholders as we continue to fulfill our mandate.”

Several examples put forth for a call for comment by the governance task force suggest decreasing the number of elected benchers, which would proportionately give appointed benchers more sway.

At the time of the call for comment, in November 2018, Mulroney said in a letter that the provincial government “believes that it is vital that governing bodies are streamlined and efficient,” adding that her ministry would “fully endorse efforts to reduce the total number of benchers at Convocation to facilitate quicker and more effective decision-making and cost effectiveness.”

Nunziata points out that the provincial government recently cut the size of Toronto’s city council to 25 members from 47.

One skeptic of the LSO’s governance model has announced a run for office: Anita Anand, a law professor at the University of Toronto, said on April 2 that she is seeking the federal Liberal Party nomination in the riding of Oakville, Ont. Anand’s’ research into the topic was recently publicized through a newspaper article titled “Ontario’s law society needs to address problems in self-regulation.”

“Self-regulation opens the possibility of conflicts of interest: lawyers governing themselves may, in making rules for the profession, make decisions that benefit themselves rather than the general public, who may be unable to protect their own interests,” she wrote in the article.

“As a result of these concerns, both Britain and Australia have moved away from self-regulation.”

  • Law society management structure makes its management of the legal profession incompetent

    Ken Chasse
    Law society regulation of the legal profession in Canada can never adequately be in the public interest because law societies in Canada are managed by benchers. They are all practising lawyers. The only significant pressure upon them comes from their law practices or institutional law department employers; I mean the kind of pressure that brings fear of consequences if the source of the pressure is not adequately responded to. Their law practices are where: (1) lawyers earn their living; (2) they make their professional reputations; and, (3) where they can get into trouble if they don't have enough time to serve their clients or employers adequately. Therefore, a bencher's time is dominated by that number-one priority. So, law society management cannot be sufficiently devoted to the public interest. It is first, management in the benchers' interest. Being a practising lawyer is a career. Being a bencher for a few years is a way of embellishing one's career as a practising lawyer. The demands of the career always come first. Whatever time is left over will be used to serve the public interest, but only if compatible with fulfilling the personal reasons why a lawyer becomes a bencher. That is why no law society is attempting to solve the most serious, damaging problem in Canada's justice system, which is the unaffordability of legal services for the majority of society--because benchers believe that dealing with such a problem would conflict with their duties as lawyers who must give first priority to their clients. It will involve innovation, and an unknown quantity of time, and perhaps, the cost of learning how to deal with it will be repeated failure, i.e., unanticipated negative consequences. That is contrary to the position as to time and motivation of a bencher as a practising lawyer. As a result: (1) no law society in Canada has a program, the purpose of which is to solve that "access to justice" problem (the A2J problem); (2) law societies in Canada are managed the same way now as when they were created 200 years ago; (3) the "bencher concept of management" has not been changed in 200 years; and therefore, (4) law societies in Canada are well established as being very conservative institutions that never change, and never engage in significant innovation. That is because such innovations, as necessary to solve the A2J problem, are always seen as threatening the possibility of unforeseen consequences that may interfere with being a good lawyer, and may interfere with achieving the personal reasons why lawyers become benchers. The work of a bencher is almost completely unpaid, and requires approximately 31 days a year of a lawyer's time (according to the Law Society of Ontario's own estimates). Therefore, law societies' response to the A2J problem is merely to provide very simplistic, free legal services, but not to try to solve that problem. Such services can't deal with any major legal problem. Consider: in the production of goods and services everything changes, but not law society management structure. Therefore, it has long ceased to be a competent form of management. In other words, it is no longer possible to be both a good lawyer and a good bencher. So, all talk of self-regulation of the legal profession's being in the public interest, and the best for the rule of law, and for the independence of the legal profession, is the law societies' way of avoiding the foundation cause of all major law society problems--the "bencher management structure" of Canada's law societies. Those lawyers who want to be benchers don't want to see that way of embellishing their careers be diminished in any way. And so, one of the major victims of the A2J problem is the legal profession itself. The majority of lawyers are short of clients because middle and lower-income people cannot afford lawyers for anything except very simple, routine legal services. And so, no one in authority is trying to solve the most serious problem interfering with the rule of law in Canada's history; that A2J problem. All issues concerning Canada's law societies must deal with solving that problem. It's at the heart of the purpose of a law society. And in turn, the bencher management structure is part of the cause of all major problems of the justice system. The other parts are: (1) the failure of governments to hold law societies accountable for their incompetent performance; and, (2) the failure of governments to fund the institutions of the justice system adequately. To deal with justice system problems adequately requires changing the self-regulation of the legal profession by bencher-managers. Think of a law society as being a major utility that provides its legal services through all of the law firms in its province or territory. But that utility is managed by part-time amateurs, because the major problems of law societies are not legal problems. The A2J problem is not a legal problem. Lawyers don't have the necessary expertise and they don't go out and get it, i.e., retain the necessary experts to deal with the A2J problem. The senior managers of this utility all have much more important jobs elsewhere. The utility that is the law society is merely a way used by some lawyers to promote their careers. As a result, law society management in Canada is inevitably incompetent management. It victimizes: (1) the population; (2) the court systems (overwhelmed by self-represented litigants) (3) the legal profession itself; and, (4) Legal Aid funding. Governments can't be seen to fund Legal Aid organizations better but do nothing to improve the affordability of lawyers for that majority of taxpayers who pay for the justice whereat all lawyers directly, or indirectly earn their living. But governments do not challenge the performance of law societies in Canada because they don't want to spend any significant quantities of money on the justice system because "there are no votes in justice." And publicly challenging law societies might bring governments such unwanted consequences that require spending time and money on the justice system. Therefore, the A2J problem gets worse because, no pressure, means no innovation, and therefore, the necessary changes do not happen. So, blame the two tacit co-conspirators--governments and law societies--for the present very poor state of Canada's justice system. That is so because governments do not make law societies accountable to the political-democratic process, i.e., to the electorate. And no one is making governments sufficiently accountable for the poor state of Canada's justice system. If governments were made to fear such necessary pressure, they would end the self-regulation of the legal profession. -- a senior member of the Law Society of Ontario.

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