And Now for Something Not Completely Different
by Gordon Turriff, QC
After nearly eight years as a Bencher, I know one thing for sure: regulating lawyers is not easy. It should be easy because almost all BC lawyers are well-qualified; are more than reasonably competent in the advice they provide and the technical skills they display; and are people of high integrity. But the simple fact is that it’s not easy to regulate lawyers because the very few who are not good lawyers or good people are often very publicly rotten. So the hard part about regulating lawyers is ensuring that the way we deal with the very few bad ones doesn’t undermine public confidence in a regulatory regime that, overall, works very well in the public interest.
I know that our current regulatory regime works very well overall because for eight years I’ve been helping to discharge the Law Society’s regulatory responsibilities. We aren’t people looking in from the outside, spotting a few instances where, as regulators, we could have done better. We actually make the hard decisions about whether to admit as lawyers people whose lives have been a lot more complicated than ours, but who are capable nonetheless of contributing to the public welfare by applying their knowledge and skill in the service of clients day by day. We actually weed out lawyers who can’t meet our competency standards; and we actually disbar or otherwise punish lawyers who don’t follow the rules that we, as Benchers, make to protect clients and other people.
Why might public confidence in regulation of lawyers by lawyers be undermined? Because sometimes we admit people whose pasts should have revealed to us that they would not be temperamentally or otherwise suited for the legal profession; because our practice standards might be more rigorously enforced, even though it is indubitably right to say that most clients are well-served by their lawyers; and because sometimes we are too slow in moving against alleged rule-breakers, when behaviour ultimately found to be worthy of sanction might be repeated before the sanction for the initial conduct is applied.
As I have been saying in my public speeches throughout BC and in Australia, we want to be better regulators. We want to hear how we might improve. We will listen and, where the public interest calls for improvement, we will get better or we will say why a higher value requires us to continue doing what we do the way we do it, as when we must follow the rules of natural justice in our discipline proceedings.
There is no incentive for Benchers not to do their jobs as regulators as well as they can. They’re volunteers. They always act in good faith. Why would they offer their services with the intention of doing poor work? Why would they do poor work when they know they run the risk of public censure? Since January 1, 2002, I have had the privilege of serving as a Bencher with a fine group of fellow Benchers and I have had the advantage of support from a fine staff of Law Society employees. Everyone has consistently made service in the public interest their priority. You won’t find better people in the community.
If I had another eight years? (You can imagine the stare I’ll get when my wife, Ellen Gerber, reads that sentence!) If I had even just one more year, I would create a Law Society public education department and a more refined communications policy; I’d subject the articling program and PLTC to a new critical review; I’d create separate classes of “prosecutorial” and adjudicative Benchers; I’d explore the particular ethical problems in-house counsel face and I’d create a subset of rules of professional conduct that address their particular employment circumstances; I’d ensure that the Benchers, not Law Society members, determine what annual fee is needed for the protection of the public interest; I’d delve into interesting independence questions that I think arise from the Law Society providing liability insurance coverage for lawyers; I’d promote the enhancement of the role played by the Ombudsperson as a recommendatory — and only a recommendatory — overseer of the Law Society’s regulatory work; I’d arrange to send the Federation of Law Societies of Canada four or five times the money we send now, as a way of ensuring that regulators of lawyers in every Canadian province and territory have the strongest possible voice in dealing with governments who just don’t seem to understand that the rule of law, in all its aspects, must not be compromised; and I’d send to the pillory any lawyer who described independence of lawyers as a gift of the Legislature, or who said that regulation of lawyers by lawyers is a privilege!
So what I might do, given another year, would be to make changes that I think are important, but that doesn’t mean that the Benchers’ regulatory work is wanting in any fundamental way. Improvement is good. But change for change’s sake will not serve the public interest, particularly when the change is promoted by ill-informed critics on a consumerism bandwagon, like the bandwagons governments have promoted in England and Australia. As far as regulation is concerned, British Columbians don’t need something completely different.
It will be for you to judge how well I have done my work as Law Society President. It will be for Ellen to welcome me back to ordinary life. She has tolerated me magnificently in a topsy turvy year.