President's View

North America — last stand for an independent bar?

by Howard R. Berge, QC

At the Commonwealth Law Conference in Melbourne this past April, Executive Director Jim Matkin and I observed what can only be described as the precipitous decline of the common law and of the independence of the legal profession.

Governments of every Australian state and of New Zealand have set up commissions to oversee and review discipline decisions of law societies. The Tasmanian Attorney General intends to take over the investigation of complaints and lawyer discipline completely. The New South Wales government has given the 18,000-member Law Society until next July to separate its regulatory and member service functions so that the latter can be delivered on a voluntary basis. (It would be speculative to suggest that this is a precursor to taking over the discipline function completely but it would, in effect, result in a non-compulsory CBA-like function.) The Law Society of Queensland was recently dealt a serious blow as the state government moved to transfer the Society's investigatory and prosecutorial role in lawyer discipline to a new Legal Services Commission.

In each case the story is different, but some underlying themes emerge. In Queensland, controversy erupted over the Law Society's handling of complaints, especially in relation to one law firm, which prompted the state government to bring in reforms under the banner of public accountability. All of this speaks to the need for law societies to behave in a manner beyond reproach and also to defend the principle of self-regulation with conviction and integrity. Without question, our work as a Law Society must be shown as serving the public interest - our primary statutory mandate - and not our own interests as lawyers. This is fundamental to preserving public confidence in professional self-regulation.

While we traditionally have taken comfort in our common law roots as a profession, United Kingdom barristers and solicitors have not in fact fared much better than their counterparts "down under" in maintaining professional independence, and are subject to similar state review mechanisms. On another front, they face the threat of losing the common law system itself, as the UK joins with the European Community. There appears to be no discernible outcry over the gradual displacement of the adversarial system by the inquisitorial model and no deep examination of the safeguards necessary in such a transition. Where are the lawyers at this critical juncture? Here is a taste of coming changes in the United Kingdom:

  • removal of the requirements of evidence, hearings and appeal procedures in extradition;
  • relaxation on rules against hearsay in criminal cases;
  • abolition of trial by jury in some cases, such as in serious fraud and complex cases;
  • abolition of habeus corpus, allowing remands in custody without charges;
  • removal of proof "beyond a reasonable doubt;"
  • removal of necessity to prove intent in certain classes of fraud.

It appears that our best hope of preserving fundamental legal protections in the criminal law and in legal processes in Canada, and of reclaiming them for the non-EU Commonwealth countries, is to ally ourselves in some manner with the United States.

The Supreme Court of Canada has described the profession's independence from the state as "one of the hallmarks of a free society." I believe that, in the United States, as here, independence of the legal profession is a constitutionally protected value. This is not for the benefit of lawyers, but their clients. A cornerstone of our justice system is that people facing prosecution by the state can have faith in the independence of the judges as decision-makers and in the independence of their lawyers to defend their legal rights.

To begin these discussions, the Executive Director and I, and possibly our Vice-Presidents, will attend the American Bar Association meeting in August. We believe that a number of elected and executive officers of the Australian states and of New Zealand will also be at that meeting.

Our Law Society is well positioned to open up this dialogue. We recently led in a court challenge on federal proceeds of crime legislation, to prevent infringement of solicitor-client privilege, and on the government's unilateral closing of provincial courthouses, to protect the independence of the judiciary. Given the developments we now see on an international front, it is clear our vigilance is necessary and may encourage other law societies and state bar associations out of passivity.

This is not to say that law societies should be immune from criticism or that we should resist reform. Quite the contrary. We need to continually renew public trust in the legal profession, such as by demonstrating the fairness and transparency of our standards and regulatory processes (see, for example, our recently expanded discipline disclosure rules detailed later in this Bulletin). And it would be foolish not to acknowledge that some provincial initiatives, such as the appointment of lay Benchers, have benefited our profession.

But some of the changes we are seeing in other Commonwealth countries go far beyond what is reasonable for public confidence - attacking the core of professional independence. If reform places lawyers under state control, that effectively sacrifices the right of clients to independent advice and representation. That is not reform that builds public confidence. It is time to take a stand.