N Semple: Legal Services Regulation at the Crossroads Justitia’s Legions

Noel Semple, Assistant Professor, University of Windsor Faculty of Law, Canada

Through a comparative study of English-speaking jurisdictions, this book seeks to illuminate the policy choices involved in legal services regulation as well as the important consequences of those choices. Regulation can protect the interests of clients and the public, and reinforce the rule of law. On the other hand, legal services regulation can also undermine access to justice and suppress innovation, while failing to accomplish any of its lofty ambitions. The book seeks a path forward to increasing regulation’s benefits and reducing its burdens for clients and for the public. It proposes a client-centric approach to enhance access to justice and service quality, while revitalizing legal professionalism, self-regulation, and independence.

A Salyzyn: Law Society Complaints: What We Don’t Know and Why This Is a Problem

Posted to SLAW June 10, 2015

In many ways, Canadian law societies are now more transparent institutions than ever before. The Law Society of Upper Canada, for example, has adopted innovations like live webcasts of Convocation meetingsonline Annual Reports and a frequently used Twitter account which allow for easier access and greater insight into what goes on at Osgoode Hall and why. And, of course, for those interested in what happens to lawyers “gone bad”, there is free public access to discipline-related decisions on CanLII.

Disciplinary decisions seem to be, indeed, one of the things that lawyers and the public are most interested in. In recent years, several high profile cases – including the ongoing civility case involving newly elected Bencher Joseph Groia, and the now-dismissed conflict of interest allegations brought against former Hollinger lawyers – have received considerable attention. Just in the past few months, the proceedings against a Toronto lawyer who received a five-month suspension after admitting to professional misconduct in representing refugee claimants has received significant media attention (see, herehere, and here).

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M Mercer: Independence and Self-Regulation

Posted to SLAW September 17, 2014

It is entirely human to fail to appreciate when one’s judgment is affected by a conflicting personal interest or duty. Our conflicts rules reflect this problem. Where there is a substantial risk of impairment of representation, clients get to decide whether to accept that risk. Where representation will be materially impaired, lawyers cannot act even with client consent.

This concern about conflicting interests is well rooted in behavioural psychology. Dan Ariely, an author and a professor of psychology and behavioural economics[i], writes on this topic[ii].

More … 

Commentary: New Brunswick Real Estate Association v. Estabrooks, 2014 NBCA 48

By Stewart McKelvey

http://canliiconnects.org/en/summaries/29119

Conclusion:

“The majority decision in Estabrooks will be a good precedent for professional regulatory bodies sued for malicious prosecution based on disciplinary proceedings that turned out to be unfounded – and for counsel and litigants urging a cautious approach to the expansion of any contested tort. But as the dissent points out, there is now a conflict in the Canadian case law on malicious prosecution. It might take a trip to the Supreme Court of Canada to settle the dispute.”

 

LSBC – Joint Task Force on Future of Legal Services Regulation

Important news from LSBC News Releases – December 9, 2013

Law Society governors approve joint task force recommendations on the future of legal service regulation

For the LSBC website, click HERE

Vancouver – At their December meeting, the Benchers of the Law Society of British Columbia unanimously approved in principle three recommendations that could transform the regulation and delivery of legal services in BC.

These recommendations are the culmination of many years of review capped by a year consulting and studying the question of whether various legal service providers, including lawyers, notaries public and paralegals, should be brought under one regulatory umbrella. The Legal Service Providers Task Force presented its final report on December 6, 2013.

The Benchers approved the following task force recommendations:

  • The Law Society and the Society of Notaries Public of British      Columbia seek to merge regulatory operations.
  • That a program be created by which the legal regulator provide      paralegals who have met specific, prescribed education and/or training      standards with a certificate that would allow them to be held out as “certified      paralegals.”
  • That      the Law Society develop a regulatory framework by which other providers of      legal services could provide credentialed and regulated legal services in      the public interest.

While details of the proposals will need to be developed in consultation with the notaries, government and others, task force Chair Bruce LeRose, QC said approving the recommendations in principle was an important first step. “Access to justice is slipping out of reach for many British Columbians,” said LeRose. “It is critical that the Law Society look for ways to reverse that trend, and these ideas could be a big part of that.”

Law Society President Art Vertlieb, QC called the Benchers’ unanimous support for the motion a “watershed moment in the Law Society’s history.”

The task force’s final report is available here. The Law Society’s previous news release about the task force is available on the website.

The members of the task force are past Law Society president Bruce LeRose, QC (chair); current governors Ken Walker, QC (vice-chair) and Satwinder Bains; Godfrey Archbold, president of the Land Title Survey Authority; John Eastwood, past president of the Society of Notaries Public of British Columbia; Carmen Marolla, vice-president of the British Columbia Paralegal Association; and Kerry Simmons, past president of the Canadian Bar Association, BC Branch.

Quotes

“It is encouraging to see our justice partners work together to transform the regulation and delivery of legal services to the citizens of our province. The Law Society has shown tremendous leadership and the recommendations made today signal that progress is being made to improving access to justice for British Columbians.” Hon. Suzanne Anton, QC, Attorney General & Minister of Justice

“BC Notaries look forward to working with the Law Society, our members and with the Ministry of Justice in taking the next step to ensure that any merging of regulation continues to offer protection, continued and expanded choice and improved access to legal services for the public.” Wayne Braid, Chief Executive Officer, The Society of Notaries Public of British Columbia

The BC Paralegal Association is extremely pleased with this outcome.  We wish to express our congratulations to the Task Force on an excellent report, and we look forward to continuing to work with the Law Society to develop the criteria for certification for paralegals, and to consider how best to create the regulatory framework to be developed for stand-alone legal service providers. Carmen Marolla, Director, BC Paralegal Association

The Law Society of British Columbia regulates the more than 11,000 lawyers in the province, setting and enforcing standards of professional conduct that ensure the public is well-served by a competent, honourable legal profession.

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For further information or to arrange an interview contact:

Ben Hadaway Communications Officer 604.443.5708 bhadaway@lsbc.org Robyn Crisanti Manager, Communications and Public Affairs 604.697.5845 rcrisanti@lsbc.org

– See more at: http://www.lawsociety.bc.ca/page.cfm?cid=3845&t=Law-Society-governors-approve-joint-task-force-recommendations-on-the-future-of-legal-service-regulation#sthash.MKWo3jh4.dOv5Fapl.dpuf

Lawyer Deregulation for Access to Justice – Professionalism Speakers Series – Ottawa

“Lawyer Deregulation for Access to Justice: Silver Bullet or Blank Round? What does access to justice have to do with legal services regulation?”

Link to the Ottawa website is HERE

Noel Semple
Post-Doctoral Fellow at the University of Toronto’s
Centre for the Legal Profession

When: October 30, 2013
Room number: FTX 351

This program has been accredited by the Law Society of Upper Canada for 1.5 Professionalism Hours

** Lunch included – All are welcome **

*Photos may be taken at this event and it may be recorded for use on Faculty of Law websites/publications.

A Salyzyn: Beyond the Quid Pro Quo Premise: The Legal Profession and the Public Interest

Amy Salyzyn, Beyond the Quid Pro Quo Premise: The Legal Profession and the Public Interest, published on SLAW April 9, 2013.

The Canadian legal profession has never been shy to rationalize and justify its role in society. The public relations campaign launched by the Ontario Bar Association in February is just the latest in a long history of institutional advertising efforts tracing as far back as the 1930s when the Saskatchewan Law Society placed a series of advertisements in a farm weekly.

A new urgency, however, now colours our collective efforts. What it means (and will mean) to be a lawyer has perhaps never been more uncertain. In other jurisdictions, new and disruptive business structures are radically changing once taken-for-granted “rules of the game” for the delivery of legal services. New technology is displacing the need for lawyers to perform certain tasks and will continue to do so. On top of this, our country is neck-deep in a seemingly perpetual access to justice crisis that has seriously undermined the public’s confidence in the ability of the legal profession to respect and protect their interests. The list of challenges, as we all know, goes on.

How should we, then, seek to understand and explain ourselves in this tumultuous time?
For the rest of the article and comments click HERE

N Semple: Core Values: Professionalism and Independence Theories in Lawyer Regulation”

Noel has a new article available on SSRN if you click HERE.

It has been posted to the Legal Ethics Forum; to make/view any comments, you can click HERE.

Abstract: 

North America is the common law world’s last bastion of traditional lawyer self-regulation. In the United States and in common law Canada, lawyers make and enforce almost all of the rules which govern legal service delivery. These regulatory regimes are also distinctive in their (i) maintenance of a single, unified occupation of “lawyer,” (ii) insulation of law firms from non-lawyer ownership, and (iii) near-exclusive regulatory focus on individual lawyers as opposed to law firms. Other wealthy English-speaking countries (the UK, Ireland, Australia and New Zealand) have gradually abandoned all of these elements of traditional lawyer regulation over the past 40 years.

Why have North American lawyers and legislators resisted such reforms and maintained traditional self-regulation? One school of thought is that lawyers have defended traditional self-regulation in order to protect their own interests. However, North American lawyers supported by functionalist sociologists respond that traditional self-regulation protects the interests of clients and the public by upholding important “core values”. This article seeks to elucidate this public interest theory, through a new reading of the legal and sociological literature. The thesis is that professionalism and independence are the two allied but conceptually distinct core values which animate the public interest theory of traditional lawyer regulation.

L Terry: Trends in Global and Canadian Lawyer Regulation

Thanks to Legal Ethics Forum for the original notice.

Laurel Terry’s paper is forthcoming in the Saskatchewan Law Review and up on SSRN for those that are interested.  Click HERE.

Abstract:

Globalization and technology have changed the practice of law in dramatic ways. This is true not only in the U.S. and Canada, but around the world. Global regulatory trends have begun to emerge as lawyer regulators have had to respond to new developments. In 2012, Australian regulators Steve Mark and Tahlia Gordon and the author, who is a U.S. academic, documented some of these global trends in lawyer regulation. See Laurel S. Terry, Steve Mark, & Tahlia Gordon, Trends and Challenges in Lawyer Regulation: The Impact of Globalization and Technology, 80 Fordham L. Rev. 2661 (2012). Their article concluded that regulators face issues in common regarding “who” is regulated, “what” is regulated, “when” and “where” regulation occurs, “how” it occurs, and “why” it occurs.

The current article examines Canadian lawyer regulation in light of the global trends Terry, Mark, and Gordon previously identified. The current article asks whether there is evidence in Canadian lawyer regulation of these same who-what-when-where-why-and-how issues. The article concludes that these trends are indeed present in Canada and explains why it is important for Canadian lawyers, regulators, clients, and other stakeholders to be aware of these global trends. The article also addresses the issue of whether these trends matter in a jurisdiction such as Saskatchewan that is not a global financial center on the order of New York, London or Toronto. The answer the article provides is “yes” – these trends are relevant to Saskatchewan and to jurisdictions throughout the world that care about lawyer regulation.

Lawyers Regulating Lawyers?

Lawyers regulating lawyers?

Written by: Alice Woolley and found at ABlawg.ca

Decision considered: Law Society of British Columbia v Laarakker Law Society of British Columbia Disciplinary Hearing Reports, September 21, 2011

Introduction

A disciplinary decision by the Law Society of British Columbia does not fall within the usual mandate of ABlawg. It is not an Alberta decision, nor even a judicial one, and has no direct precedential significance for Alberta lawyers or courts. The decision warrants comment, however, because the threat it creates to the legitimacy of lawyer self-regulation applies to all Canadian law societies. Specifically, the misdirection in regulatory energy reflected by the decision of the Law Society of British Columbia in this case is something to which all Canadian law societies have shown themselves to be susceptible.

For the full article, click HERE.