The Rule of Law, Lawyer Independence and the Self-Governance of Lawyers
Canada is a country based on the rule of law
The rule of law ensures that everyone follows the same laws. It means that the law is supreme over officials of the government as well as over corporations and private citizens, no matter how wealthy or powerful. The rule of law ensures that governments “play by the same rules” and do not exercise their powers arbitrarily.
Citizens of countries that do not adhere to or recognize the rule of law are often unable to stand up against the government or other powerful interests without fear of attack and there are often reports of human rights violations. (For some examples of such stories, see the right column.)
- Recent developments in the UK threaten rule of law (Winter 2016 Benchers' Bulletin, p.7)
- The Law Society has sent a letter in response to the recent report of the International Bar Association's Presidential Task Force on the Independence of the Legal Profession that identifies “threats to the bastion of a free and democratic society.” Read the Law Society's letter to the IBA, sent in November 2016.
- Rule of Law and Lawyer Independence Advisory Committee issues statement on recent events in Turkey by the Rule of Law and Lawyer Independence Advisory Committee, July 2016
- Attacks on the Access to Legal Advice and What it Means for the Rule of Law: Warnings from China and England, by the Rule of Law and Lawyer Independence Advisory Committee, February 2016
- Surveillance of Electronic Communications: “Is there anybody out there?”…Yes there is. – Commentary from the Rule of Law and Lawyer Independence Advisory Committee (first published in The Advocate, January 2016)
“Lawyer independence” is a public right that protects the rule of law. It is not a lawyer’s right – rather, it is a fundamental right that the public has to be able to obtain legal advice from a lawyer whose duty is to the client, not to any other person and certainly not to the state. It guarantees that a client can be confident that his or her lawyer provides legal assistance without fear of interference or sanction by the government or other interests.
In fact, many would consider the independence of lawyers and the courts, together with an independent media, to be the cornerstones of democracy.
Related news item: Court of Appeal for B. C. confirms Canada's law society rules to fight money laundering are effective (Federation of Law Societies of Canada, April 2013)
Independence and the lawyer-client relationship
The Rule of Law and Lawyer Independence Advisory Committee has focused its attention primarily on the independence of lawyers in the context of the profession being independent from the state. It has always recognized, however, that lawyer independence from the state is but one aspect of lawyer independence. The literature on this topic identifies other aspects of independence that are important, including independence of control over conditions of work (such as for whom to act), and independence from one’s client (on the basis that a lawyer must not be made to do something by a client that goes against a lawyer’s own sense of professional or ethical propriety).
A recent report, prepared for and on behalf of the Solicitors Regulation Authority of the Law Society of England and Wales, specifically comments on the risk to lawyer independence framed in the context of the changing nature of what clients demand from their counsel, how lawyers understand independence, and whether, in light of the lawyer-client relationship and influence that, in particular, large clients can have over representation, the independence of lawyers in large firms has or has the potential to be compromised. Lawyers who are interested in this topic will find the report, which is available on the Solicitors Regulation Authority website, to be of considerable interest. Lawyers are invited to contact the chair of the committee if they have any questions.
Self-regulation of lawyers
Most professions, including doctors, engineers, accountants and many others, are regulated. Lawyers are regulated by the Law Society of British Columbia which decides who qualifies to become a lawyer in BC and disciplines any lawyers who do not follow its rules.
At the Law Society, most of the people who investigate and make decisions about lawyers are also lawyers. This is known as self-governance or self-regulation and is common to all professions.
People sometimes question the wisdom of lawyers being self-governing, wondering whether self-regulating bodies can be entirely objective. However, self-regulation actually protects the public’s right to independent lawyers. A lawyer’s role is to provide advice on behalf of a client, often in disputes involving the government or based on laws created by the government. A lawyer’s role would be difficult, if not impossible, if the organization that regulated lawyers was directly or indirectly controlled by the government. As one writer has said:
"It is imperative that the public have a perception of the legal profession as entirely separate from and independent of the government, otherwise it will not have the confidence that lawyers can truly represent [the public] in its dealings with government."
Therefore, the Law Society is independent of the government. It is not a government authority and is not part of the public sector. It is not subject to instructions from government, nor does it receive any public funding.
Public interest is paramount
- The Law Society has sent a submission to the Federal government regarding its consultation on national security. The consultation focuses on key elements of Canada’s national security laws and policies “to ensure they reflect the rights, values and freedoms of Canadians.” In particular, the government is looking to inform changes to national security legislation, including changes introduced by the Anti-terrorism Act, 2015 (former Bill C-51). Read the submission.
The Law Society submitted a report to the Honourable Jody Wilson-Raybould outlining recommended principles for the appointment of Justices to the Supreme Court of Canada. The report, approved by Benchers at their July 8 meeting, sets out four principles that the Law Society views as essential to the process of appointing Justices to the Court: transparency; judicial independence; merit and diversity; and public participation. See the report and the letter to the Minister.
The duty of the Law Society is to act to protect the public interest and not the interest of the lawyers it regulates.
The system is designed to ensure the public interest is always the Law Society’s primary focus. While the majority of its governors, known as Benchers, are lawyers elected by the legal profession, the provincial legislature also appoints six non-lawyers to the board of governors. These Appointed Benchers have the same opportunities as elected Benchers to participate in policy debates, hearings and all committees.
Additionally, members of the public are appointed to hearing panels, which decide the fate of those applying to become lawyers or those who are alleged to have engaged in professional misconduct.
Also, people who are unhappy with how their complaints about lawyers were handled by the Law Society can contact the Office of the Ombudsperson if they feel the Law Society's process was unfair.
Monitoring and reporting
Developments on issues affecting the independence and self-governance of the legal profession and the justice system in BC are monitored by the Independence and Self-Governance Advisory Committee of the Law Society, which reports those developments to the Benchers. Read the committee's most recent report.
The Rule of Law and Lawyer Independence Advisory Committee has prepared a series of principles, approved by the Benchers on July 8, 2016, that it has concluded should underlie the appointment of judges to the Supreme Court of Canada. The report was sent to Minister of Justice on July 12, 2016. Read the letter to Minister and the full report.
Self-Governance as a Necessary Condition of Constitutionally Mandated Lawyer Independence in British Columbia, a speech by 2009 Law Society President Gordon Turriff, QC. Speaking at the Conference of Regulatory Officers in Australia, Turriff gave a keynote address, arguing strongly for the importance of an independent legal profession as a necessary component of the rule of law. (October 2009; updated December 2009)
The World is not unfolding as it should: International justice in crisis, a speech delivered by Supreme Court of Canada Justice Rosalie Silberman Abella to the The Empire Club of Toronto. (February 9, 2011)
View the DVD Legal Independence: It’s Your Right. This 10-minute video was produced for high school students to demonstrate the concepts of judicial and legal independence with real-life examples.
2016-2017 Essay contest
The Rule of Law and Lawyer Independence Advisory Committee launched an annual essay contest for BC secondary students last year to reaffirm the significance of the rule of law and to enhance students’ knowledge and willingness to participate actively in civic life.
For the 2016/17 school year, the Law Society is inviting all Grade 12 students and any secondary school students who have taken, or are currently enrolled in either Law 12 or Civic Studies 11, to submit an essay on the following topic:
How would you explain the rule of law to a fellow student who has never heard the term before? You might discuss why the rule of law is important, and how it impacts our daily lives. You might also discuss any current events involving threats to the rule of law.
The winning entry will be awarded a $1,000 prize, and the runner up will receive a $500 prize. The first place winner and runner up will be invited to an awards presentation event at the Law Society in Vancouver. Deadline for submissions is April 10, 2017.
2015 Magna Carta essay contest
The Law Society congratulates essay contest winner Han Wei (Helen) Luo (pictured left), Law 12 student from Hugh McRoberts Secondary School in Richmond, and runner-up Anushka Kurian, Law 12 student from Hugh Boyd Secondary School in Richmond, for their exemplary essays on the topic of “Magna Carta and its relevance to Canada in the 21st Century.”
Winning essay: “The Journey of the Magna Carta” by Han Wei (Helen) Luo
Runner-up essay: “The Ripple Effect of the Magna Carta” by Anushka J. Kurian
Related news stories about the rule of law and human rights
As Egypt votes on laws, cynicism rules the street, The New York Times
Cambodia court cases mount against opposition, The New York Times
Criticism of Chávez stifled by arrests, The New York Times
Mexico's new attorney general has a chance to make a difference, Los Angeles Times