Law Society seeks to enhance regulatory oversight
The Law Society is always looking for ways to enhance the public’s confidence in the legal profession’s ability to effectively regulate itself. Much of the focus at the June 2009 Benchers retreat was on the topic of external regulatory oversight regimes, where regulatory decisions are overseen in some fashion by an independent agency.
During the past several years, a number of common law jurisdictions outside North America have introduced regulatory oversight regimes that have changed how the legal profession is governed and regulated. These include many Australian states, as well as New Zealand, and England and Wales.
The reasons behind these jurisdictions’ regulatory changes vary, but two main drivers are apparent — the unsatisfactory handling of complaints against lawyers by regulatory and representative bodies and the growing trend towards treating legal services as a consumer commodity best suited to a competition-based market.
At its March 4, 2011 meeting, the Benchers considered three options:
- a review involving the provincial Ombudsperson;
- a voluntary external review process;
- a proactive “performance audit” or “credentialling” approach to public oversight, which would compare current operations and processes against best practices.
The first option looks at the BC Ombudsperson’s existing role — to oversee the Law Society’s regulatory and decision-making processes, on a case-by-case basis, as they relate to the Society’s core functions and responsibilities. Is this sufficient to ensure the public’s confidence in the Law Society’s ability to effectively regulate the conduct and competence of lawyers, or should the Ombudsperson’s role be expanded? If so, can this be done without undermining the independence of the legal profession? Also, should the Ombudsperson’s present role be promoted more effectively to increase public confidence?
The second option, a voluntary external review process, must determine whether this can be done without compromising the public’s right to an independent legal profession. As an example, the Law Society looked at the recent appointment of an independent observer by the Law Society of England and Wales’s Bar Standards Board. As well, Ontario and Manitoba have for a number of years had Legal Complaints Commissioners, who review the law societies’ handling of complaints. The functions of the commissioners are similar to those of the Complainants’ Review Committee in BC.
The third option, a performance audit of best practices, poses an interesting challenge in terms of the stated goal of enhancing public confidence in the Law Society’s performance as a regulator in the public interest. While a certification model such as ISO (International Organization for Standardization) can be a useful tool in some industries for assessing performance and best practices, it may not be the best fit for achieving regulatory oversight objectives.
The Benchers concluded that the third option, an oversight framework that is based on a performance audit and review of best practices, is the preferred model. Essentially, this model has three main components: determining the appropriate standards that a law society would be expected to meet; deciding how and by whom compliance would be monitored; and developing a set of best practices guidelines.
The Benchers also determined that the Law Society should enhance its communications with the public about the important role the Office of the BC Ombudsperson plays in reviewing the Law Society’s handling of complaints against lawyers.