Preserving Independence of the Legal Profession

by Frits Verhoeven

The issue of governance of the legal profession is not hot right now. That makes this the perfect time to make sure that we have it right, if we are to preserve independence and self-governance of the legal profession for the long run. A threat could appear at any time, and suddenly, as the recent experience in England and Wales has shown. We cannot afford to be complacent.

The public has an understandable mistrust of self-regulation. The perception of conflict of interest is hard to avoid. The mistrust increases when the body responsible for regulation of the profession also represents the members of the profession in relation to their private interests. In his December 2004 final report on “Review of the Regulatory Framework for Legal Services in England and Wales,” Sir David Clementi said, “A key recommendation of this Review is that the regulatory and representative functions of frontline regulatory bodies should be clearly split.”

In this province, we have a clear and distinct separation between the Law Society, as the statutory regulator of the profession in the public interest, and the Canadian Bar Association, which has crucial public interest functions but is also the representative of the legal profession in relation to its private or business interests. We’ve gone one better than the recommendations made by Mr. Clementi: the regulatory and the representative functions are dealt with by separate organizations.

Other professions do not have such a clear separation between regulatory and representative functions. For example, all of the accounting profession’s professional bodies have dual roles, and compete with each other for members and for prestige.

The government has greatly expanded the number of self-regulating professional groups. It is not surprising that issues arise concerning the effectiveness of the regulatory functions they perform. There is a persistent belief that out of self-interest some professions have been slow to recognize foreign credentials. The Ellison case led the editors of the Vancouver Sun to criticize the processes for discipline of teachers in B.C. Other regulators have not matched the Law Society’s level of openness and transparency in relation to discipline matters, and this has also led to criticism. Veterinarians are suing their regulatory body, and opticians are complaining publicly about theirs.

Issues relating to governance of other professional organizations could lead to proposals for change that affect our own profession. Independence of the legal profession is a cornerstone of a free society, and in that respect the legal profession is unlike all others. However, the public does not necessarily share that view. Our best protection against a threat to our independence lies in effective regulation of the profession, a demonstrable avoidance of conflict of interest, and in having all parts of the legal profession working together to preserve our independence.

In that respect good relations between the CBA and the Law Society are vital, and are now excellent, thanks to a concerted effort by both organizations, and in particular by our most recent past presidents, Rob McDiarmid, QC of the Law Society and Meg Shaw of the CBABC. I look forward to continuing that positive relationship with current LSBC President Anna Fung, QC. Effective cooperation between the Law Society and the CBABC will serve us well in avoiding threats to independence of the profession, and in dealing with proposals for change should they occur.

This article was published in the February 2007 issue of BarTalk. © 2007 The Canadian Bar Association. All rights reserved.