Will it be déjà vu all over again?
In the early 2000s, there was a high degree of angst among Canadian law societies as concerns about the ‘loss of self-regulation’ were ever present. Largely as a result of the work of Sir David Clementi in England and the proposed stripping of regulation from the Law Society and Bar Council, Canadian legal regulators were worried a similar result might happen in Canada.
The Legal Services Act 2007 was passed; the Solicitors Regulation Authority, the Bar Standards Board and the uber-regulator, the Legal Services Board were created; non-lawyer ownership of law firms was enabled; protecting the consumer interest was identifies as a regulatory objective. Canadians watched with interest. The sky did not fall.
The changes in England caused most law societies to clarify their own primary role as being ‘to protect the public interest’. Most took steps to reduce or eliminate their advocacy work for the profession. It became understood that it was the job of the Canadian Bar Association, nationally and locally, to do that. The law societies wanted it to be very they were not ‘lawyer-centric’ organizations. Their reaction was defensive, mostly about making minimal changes to preserve themselves.
For more than a decade we have watched the English experiment unfold. The changes in England and Canadian societies’ commitment to the primacy of regulation did lead to some international collaboration. The International Conference of Legal Regulators was founded to provide a forum for regulators to share and learn from each other. The International Bar Association recognized that there needed to be a forum for public interest and protection issues to be discussed, separate from those that focused on the welfare and success of lawyers and firms. There have been numerous studies about the future of legal services delivery which have recognized the need for effective public interest regulation.
This week the Independent Review of Legal Services Regulation – https://www.ucl.ac.uk/ethics-law/publications/2018/sep/independent-review-legal-services-regulation – got underway. Canadian Law Societies should not only pay attention to this work, but they should find a way to actively engage with the issues Prof. Mayson has identified as in need of attention.
The Review is precipitated by a study conducted by the Competition and Markets Authority (CMA) in 2016 and their recommendations. They found many aspects of the current model of legal services regulation wanting. Though no identical study has happened in Canada, much of what the CMA notes would be replicated in Canada. And we have our own studies relating to access to legal services and the justice system, that ought to cause legal regulators to take note. The National Access Committees, the CBA’s Equal Justice Report and the most recent material published by the Canadian Forum for Civil Justice all report on the significant deficit in Canada of legal services and the ‘access to justice crisis’. In varying degrees, they draw a connection between the current state of regulation and the crying needs in Canada for better and more extensive legal service delivery models.
Prof. Mayson’s review will interrogate the very issues that Canadian law societies should be thinking about –what role do regulatory objectives play in prescribing the work and approaches of legal regulators? Is regulation proportionate? Should risk (of harm) be used as a major factor in determining the scope of regulation? Do we need to regulate all legal services? How effective has the regulation of law firms/legal entities (including ABSs) been? Have the regulators really separated from the representative bodies (or in Canada, do the regulators continue to carry out representative/lawyer centric activities?)
Overarching is the need to clarify the meaning of ‘public interest’ especially in light of the current requirement in England to protect the ‘consumer interest’ and the emerging research on behavioural ethics and behavioural law and economics. The crucial question, beyond the definition, is when is regulatory intervention required in the public interest?
Canadian law societies have opened the door slightly on some of these issues through several projects. The Transforming Legal Regulation work in Nova Scotia has gone the farthest. The work of the Prairie law societies has focused on some of these issues. British Columbia’s law firm regulation and Ontario’s advancement on issues affecting racialized and indigenous lawyers have also prioritized some aspects of the work that Prof. Mayson’s Review will address. But there is nothing that is close to comprehensive.
In the early 2000s Canadian law societies watched from afar as profound issues about legal regulation and what was required to legal services in a modern world. That world has changed significantly since 2007, when, as hard as it may be to believe, technology and online delivery were not factors that influenced the Clementi Report. In 2018, those law societies, acting collectively, should find a way to have a made in Canada study and a national discussion about what is required for effective legal regulation in 2018. They should create a model for an effective regulator. They should define what the purpose of a law society is, through model regulatory objectives (as the ABA has done) and what the public interest is. They should address governance and how members of their boards/Benchers are selected, whether they be from within or outside of the profession? They should address how regulators can actually demonstrate to the public and the profession that what they do is valuable and serves the public interest.
None of these issues is easy, but the Review in England provides a significant opportunity for the profession in Canada to commit resources to a similar task, to benefit from synergies with the English review and to identify how effective public interest regulation will be part of the solution rather than the problem. If nothing is done and the status quo is perpetuated, it will be 2007 again – déjà vu – as the public and governments watch the access to justice crisis worsen and those with overall responsibility for the public interest simply observe from the sidelines.
Canadian Law Societies should pay attention to Stephen Mayson’s work
Will it be déjà vu all over again?