Interesting times for self-regulating professions

Gavin Hume, QCby Gavin Hume, QC

One cannot help but be struck by the barrage of current news stories from the Middle East as citizens rise up against their governments in attempts to bring about change, only to be attacked, imprisoned and even killed for their beliefs and audacity to challenge the governing authority.

And while these reports certainly cause me to appreciate the rights we enjoy in our own stable democracy, I am also very much aware that the preservation of these rights cannot be taken for granted.

It is incumbent upon the legal profession to continuously deserve the right to self-regulate and thereby do its part to maintain the rule of law and the right of members of our society to achieve change and speak against government without having to rise up.

Here in the west, we have been reminded of this after recently witnessing the erosion of the legal profession’s ability to self-regulate in several countries.

In Australia, government stepped in to force a national mobility agreement after state and territory regulators took too long to develop one on their own. The lack of lawyer mobility had been effectively crippling the national economy as corporations were forced to delay operations while awaiting legal assistance that they could not source from other jurisdictions. The federal government is now working on the creation of the National Legal Service Board, which will take over responsibility for regulating the profession.

In England, lawyers lost their right to self-regulate after a series of poor, highly-public discipline decisions and in-fighting resulted in a loss of public confidence in the regulatory authority. Now, a single government-appointed body oversees the entire legal services sector in England and Wales, with the mandate to ensure that the interests of consumers are placed at the heart of the legal system.

Meanwhile, in Ireland, an independent regulator will be in place this fall that will no longer allow the legal profession to run its own affairs, after it was acknowledged there was little or no independent oversight of the profession in Ireland and that the existing, outdated system had the dual role of regulating and representing the profession, which diminished independence and transparency.

Not surprisingly, this topic was on the agenda of last year’s international Commonwealth Lawyers Association conference, particularly as it related to the rule of law and the potential impact of legal ­professionals no longer being independently regulated.

As the BC member of the Council of the Federation of Law Societies, I am pleased to report that significant progress continues to be made on new national standards for policies and protocols that have, or will be, recommended for approval by the various law societies. The goal of developing a standard approach to regulation is to ensure high, consistent and transparent national regulatory principles for Canada’s lawyers and mitigate the problems we have seen in other jurisdictions where government feels it has no choice but to step in and take over some or all regulatory functions.

Canadian lawyers can be proud of the work of their regulators and the Federation. Mobility agreements signed in recent years make it relatively easy for lawyers to practise anywhere in the country. Law societies, through the Federation, recently approved a new set of national requirements for law degree accreditation, and we are in the process of developing national bar admission, investigation and discipline standards and related procedures.

And while there is still some work to be done, the Federation has adopted a national Model Code of Professional Conduct that provides for the highest possible standards in the protection of the public interest. It is now up to the law societies to review and adopt the Code.

Here in BC, the Benchers have approved the new Code with the exception of the current client conflict rules. As we did last fall for the rest of the Code, we have asked BC lawyers for input on the current client conflict rules portion. In the meantime, the Federation’s Standing Committee on the Model Code of Professional Conduct will make a recommendation on the current client conflict rules and is also gathering suggestions for future improvements.

The Benchers are also always seeking to improve how we regulate. New regulatory oversight practices and the addition of non-Bencher lawyers and members of the public to our hearing pools are new initiatives intended to maintain public trust in both us as regulators and in the profession in general.

Indeed, these are interesting times. But by virtue of the work of many forward-thinking individuals throughout Canada, the law societies and the Federation are proactively doing all they can to preserve the independence of the profession and thereby help protect the rule of law.

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