Lawyer independence in the balance
Ralston S. Alexander , QC
There has been much talk in recent months among lawyers about the independence of the Bar — a topic that should be of interest to all lawyers in BC. A number of events have combined to raise the profile of this important issue both at home and abroad:
- In Canada … Four years ago, the federal government decided, without consultation, to conscript the legal profession in Canada into espionage under new anti-money laundering and terrorist financing legislation. This was to fulfil its quest for information on the financial transactions of all our clients. As lawyers, we were expected to undertake this task without our clients’ consent and, perhaps worse, without their knowledge. Across the country, law societies said “no.” Starting in BC, we obtained interim injunctions from the courts to exempt lawyers from this legislation on the basis it amounted to an unconstitutional violation of solicitor-client privilege. Although the first battle was won, it is too early to declare victory, as I note further on.
- In the UK … In December, 2004, Sir David Clementi (a CA and MBA - Harvard, career banker and later Deputy Governor of the Bank of England) reported out on the results of his two-year consultation and study into the regulation of law-related service providers in Great Britain. His report paints a troubled landscape in the UK. He flagged numerous bodies regulating the legal profession, conflicting responsibilities, lack of coordination and cooperation and a demonstrated reluctance to respond to clearly articulated demands from legislators for reform. He has recommended splitting the representative (lawyer advocacy) functions from the regulatory functions in the profession and creating a new Legal Services Board, which would become responsible for overseeing regulation and would be accountable to government.
- In other Commonwealth jurisdictions … Following public controversies over law society complaints handling, the governments of two other Commonwealth jurisdictions (Queensland and New South Wales) decided that the self-governing privileges of the profession had been abused and should be revoked. They have effectively removed the complaints and discipline responsibilities from the law societies and transferred them to other bodies.
All these circumstances have alerted the Benchers to the dangers of complacency in the discharge of our regulatory obligations. Never before has the legal profession been under such intense public and government scrutiny. Although we may not be facing the same criticisms as in other countries, we need to maintain a high standard of regulation and be vigilant about protecting an independent bar in this country. The consequences of failing to do so are serious.
Canadians today have privacy and security over their legal matters and they trust that lawyers will keep their confidences. They also trust their lawyers to represent them fully, without improper influences or pressures coming to bear, even if they may be up against a branch of government. But without lawyers who are independent of the state, such confidence would no longer be justified. And without an independent law society, there are no independent lawyers. So the question needs to be asked. How far can government intrude into the profession before that independence is lost?
Our Benchers recently promoted a subcommittee on independence of the bar, under the able leadership of Bencher Gordon Turriff, QC, to full committee status. Mr. Turriff has gathered a group of intelligent and articulate members from our legal community to study the changing world of lawyer independence. I know they will bring new insights and leadership to the table on this issue.
I am proud that it was our law society that spearheaded the 2001 constitutional challenge to the money laundering legislation. This battle has been carried on by BC on behalf of all Canadian lawyers in consultation with the Federation of Law Societies of Canada. Our court action was an appropriate response to the federal government’s suggestion that we become spies against our own clients.
The public interest, the primary motivation of everything that we do as a law society, must suggest that the reporting provisions of the money laundering and terrorist financing legislation is unacceptably intrusive when it comes to solicitor-client privilege and confidentiality. Yet the government has not abandoned its approach to the legislation, insisting that the evils of illegal international currency movement justify the intrusion.
There are, in fact, other ways to tackle the threat of money laundering. In 2004, the Benchers passed a rule that has become a model for most of the law societies in Canada. Known as the “no-cash rule,” it prohibits members of the law society from receiving for any purpose, other than retainers or bail, cash in excess of $10,000. This restriction can be monitored by the Law Society directly through its regulatory control of lawyers. In this way, we are demonstrating to the federal government and the public that the legal profession in Canada will not be an inadvertent participant in the money laundering game. [For more on this rule, see page 5.]
The federal government is now asking that we reduce the “cap” on cash receipts from $10,000 to $7,500 (a matter for consideration by the Benchers sometime soon). So far, the government has not yet acknowledged that our no-cash rule will alleviate the need for the very intrusive reporting requirements of the money laundering legislation.
It will be up to the legal profession to remain vigilant about independence issues and to find responsible solutions to problems without discarding solicitor-client privilege or other fundamental underpinnings of our justice system.
The Federation of Law Societies is continuing discussions with the federal government to resolve these issues and come to a long-term solution. We recently agreed that the trial on money laundering, which had been scheduled to begin this fall, will be adjourned to a later date so that the law societies and the federal government can explore settlement options.
To ensure that Canadian lawyers do not become the next target for a Clementi-like report, l think all law societies must carefully avoid any deficiencies in their regulatory processes that could draw criticism or interference. Thankfully, there are important differences between the profession in Canada and abroad. In BC, for example, we recognized years ago that the mandate of the Law Society in regulating the profession was very different from that of the CBA in representing and advocating for lawyers — and we support that separation of roles.
A major concern addressed by Sir David is that the profession in Great Britain was responsible for long delays and private processes in responding to misconduct complaints. By contrast, we in Canada, and BC in particular, have become much more transparent and aggressive in our response to complaints of misconduct. Response times overall are appropriate, discipline hearings are open and full hearing reports are published promptly on our website.
This need for vigilance is not an obligation that is limited to the elected leaders of the profession. In the work that lawyers do, we must continue to provide competent, timely and cost- effective service to our clients. We must do our work in a manner that in all things is consistent with the fundamental public need for independent lawyers.
By maintaining our vigilance and perspective on the overarching importance of the independence of lawyers, we will protect that independence into the future. This is a task of immense significance, and we must, as members of this profession, do everything we can to ensure that it is accomplished.