Legal expert calls for review of law profession

Former dean says B.C. should reconsider whether lawyers should be self-policing.

A former law-school dean says the legal profession has a “trade-union mentality”, which is one reason why he thinks Attorney General Mike de Jong should examine whether the profession should be allowed to regulate itself.

Philip Slayton wrote an exposé of the legal profession published two years ago called Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession (Viking Canada). Slayton told the Georgia Straight in a recent phone interview that after the book went on sale, he received thousands of e-mails and phone calls from Canadians with “stories of woe about lawyers”. He added that he still receives two or three messages a day, and many of these people complain that they were stonewalled or ignored by provincial law societies.

“Now, some of these people may be nuts, but they’re not all nuts,” said Slayton, a former law professor at McGill University and ex–dean of law at the University of Western Ontario. “There is a lot of people out there who are very unhappy—who feel in many cases they’ve been aggrieved.”

Slayton’s suggestion that de Jong look at the legal profession’s self-regulating status drew a sharp rebuke from Gordon Turriff, president of the Law Society of B.C. In a phone interview with the Straight, Turriff said that Slayton is from Eastern Canada and has no understanding of what’s occurring in this province.

“What he doesn’t seem to understand is that it’s necessary to have lawyers governing themselves, because if they’re not governing themselves, somebody else will be,” Turriff said. “And that somebody else could be the government. We can’t have the government deciding who the lawyers are going to be or deciding what people lawyers are going to have for clients or deciding what sorts of arguments lawyers are allowed to make because lawyers are the thing that stands between the people and the state.”

Slayton, however, said de Jong should borrow a page from the Tony Blair government, which appointed a nonlawyer, banker David Clementi, to review the regulation of the legal profession in England and Wales in 2003. Clementi recommended that lawyers be regulated by a new Legal Services Board consisting of a majority of nonlawyers and chaired by a nonlawyer. Clementi called for other reforms, such as allowing companies outside of the legal profession to own legal practices.

A new Legal Services Board has since been created in England and Wales, which is independent of government and the legal profession. Last month, it announced that it will open the market up to “alternative business structures” by 2011.

Slayton, a columnist with Canadian Lawyer magazine, said the province should appoint “some wise man who is not a lawyer” to hear the public’s view on this issue. He added that this person should not prejudge the issue.

“My own view, which I’ve expressed on many occasions, is that the legal profession should not regulate and discipline itself for two reasons,” he said. “The first reason is that if you look at how they’ve done that job over time, they haven’t done it well. They have just not been good at it. But the second and more profound reason, I think, is generally speaking, we don’t let people who need to be regulated regulate themselves—because there is an obvious conflict of interest involved.”

Turriff said that the legal regulatory systems in use in England and Australia are unacceptable. “They interfere with the independence of lawyers and we can’t have any interference with the independence of lawyers because it leads to a diminution of rule of law,” he said. “And we have to have the rule of law or we’re going to end up like Zimbabwe or some of the other countries where we have arbitrary exercise of power. That would be intolerable.”

Shawn Robins, a spokesperson for the attorney general’s ministry, told the Straight by phone that de Jong, a lawyer, had just settled into his job, and would not be available to comment on whether or not the law society should continue to regulate the legal profession. NDP attorney-general critic Leonard Krog, also a lawyer, told the Straight by phone that he’s conscious of the fact that members of his profession make a lot of money. However, he also pointed out that lawyers are the “protectors of justice”. He added that in most dictatorships where there is suppression of free speech and public dissent, lawyers are often locked up in prison.

As for Slayton’s suggestion to examine the law society’s self-regulating powers, Krog responded, “It may be a question—if it ain’t busted, don’t fix it. It strikes me that if there is any profession in the community that’s not perhaps investigated—certainly in the public eye—it’s physicians. There is more complaints about physicians, I suspect, than there are about lawyers.”

Krog quickly added that he believes an attorney general has a responsibility, however, to look at every issue that’s raised, and then determine if there’s a problem.

Under the Legal Profession Act, the law society is required to protect the public interest. The society’s directors are called benchers; 25 are lawyers elected by members of the legal profession, and six are nonlawyers appointed by the B.C. government.

The law society’s most recent annual report stated that there were 1,410 complaints in 2007, of which 11.8 percent were referred to the discipline committee. The law society issued 37 citations to lawyers to appear at disciplinary hearings. There were eight disbarments, eight suspensions, and 10 fines.