B.C.'s chief justice has publicly stated that lawyers in this province should be allowed to continue regulating themselves.
In a speech to the B.C. branch of the Canadian Bar Association on November 20 in Scottsdale, Arizona, Lance Finch was unequivocal in saying B.C. should not follow in the footsteps of other jurisdictions (including England and Wales) that have created regulatory bodies independent of the legal profession.
"Like all of you, I firmly believe that government regulation is to be avoided, and that the profession must strive to protect its independence and self-regulatory powers," Finch said in the address, which was recently posted on the B.C. Court of Appeal website.
His major recommendation in the speech was doubling or tripling the number of people being admitted to the bar each year. He suggested that this would help address an "imbalance" between the demand for legal services and the supply of lawyers, thereby lowering the cost of justice to the public.
"I have said that the real risk of outside regulation is more likely to come from public dissatisfaction with the imbalance in the marketplace created by the profession’s monopoly, and with the resultant high cost of legal services, than it is from dissatisfaction with the quality of services, or conduct-review process," the chief justice stated, according to a transcript of his remarks.
Last year, a former law-school dean told the Georgia Straight that the legal profession has a "trade-union mentality".
Philip Slayton, a former law professor at McGill University and ex–dean of law at the University of Western Ontario, called upon Attorney General Mike de Jong to appoint a nonlawyer to examine if lawyers should continue regulating themselves.
“My own view, which I’ve expressed on many occasions, is that the legal profession should not regulate and discipline itself for two reasons,” Slayton, author of Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession, said in 2009. “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.”
De Jong never responded to the Straight's request for an interview on how B.C. lawyers should be regulated.
Last year, then-Law Society of B.C. president Gordon Turriff rejected Slayton's arguments. Turriff maintained that governments should never have the power to decide which clients lawyers can represent or dictate the arguments lawyers can make "because lawyers are the thing that stands between the people and the state”.
In 2003, the Tony Blair government appointed banker David Clementi to review how the profession was being regulated in England and Wales. This led to the creation of a new Legal Services Board, which is independent of the profession and government and consists of a majority of nonlawyers.
Judging from Finch's remarks to the B.C. branch of the Canadian Bar Association, he is opposed to this province going down that route.
"Lest there be any doubt as to my meaning, I would say that without independent lawyers, the work of an independent judiciary as we know it would be next to impossible," he declared. "An independent and self-regulating bar ensures lawyer independence, which is fundamental to the relationship between the citizen and the state."
Finch talks about a shortage of lawyers
In his speech, Finch stated that the growth of the population has far outstripped the growth of the number of lawyers, which is putting upward pressure on legal fees.
He noted that between 1996 and 2010, the B.C. population increased by 16 percent whereas the number of lawyers only rose by four percent.
Meanwhile, he pointed out that the UBC faculty of law recently reduced the size of its first-year student body from 200 to 180, even though there were more than 2,100 applicants.
"The statistics for the law school at the University of Victoria are similar in proportion," Finch added.
He also revealed that an estimated 10,000 people seek admission for 2,696 spaces in Canadian "common law schools".
"The restricted supply of lawyers enables individual lawyers and law firms to choose the best paying (and indeed most interesting) work," the chief justice stated. "Poor paying, or uninteresting, work is left unserved. I do not criticize individual lawyers or their firms for acting in their own self-interest. I practised law for 20 years in a private law firm. I and my partners and associates wanted to make the best living possible that we could. I am sure that remains the case today, and justifiably so."
He emphasized that constraints on the supply of lawyers are not the fault of individual practitioners or law firms.
"The restricted supply is a systemic failure on the part of the legal profession’s governing body to ensure that legal services are available to all who need them," Finch said. "That is what the public interest demands. And I suggest that is what the profession must deliver."
The Legal Profession Act requires the self-regulating licensing body, the Law Society of B.C., to "uphold and protect the public interest".
The chief justice explains why the law society should take action
Finch cited three reasons why the profession must "address its monopoly on the supply of legal services".
”¢ The first is the threat to self-regulation.
”¢ The second is that "other factors are at play" in the legal-services market. "Briefly, the breaking down of trade barriers, the increasing portability of services, and technological advances, will all make it easier and less expensive to provide legal advice from outside Canada," Finch said. "Lawyers will have to adapt to these changes if they are to compete in the new environment."
”¢ Finally, the constitution recognizes the principle of access to justice. "It is a necessary element for maintaining the legitimacy of our judicial system," the chief justice stated. "It is also morally wrong that some are able to enforce or defend their civil rights while others, based solely on their inability to pay, are denied access to justice."
Finch admitted that he didn't have any clear answers, but still offered up several suggestions.
"Why not admit more applicants to law schools?" he said. "Why not qualify more lawyers to practice? Why not reduce the articling period from twelve months to six months? A six-month requirement for articles would double the number of places available. Why not eliminate the articling requirement for those who have served as law clerks? Why not make the professional legal training program two weeks in length rather than the present 10 weeks."
He noted that an appropriate bar exam and requirements for continuing professional development would maintain quality control over the profession.
"In addition, perhaps the criteria for pro bono legal services could be expanded so that more persons would qualify for free services," Finch commented. "More radical innovations might include provision of free civil legal aid clinics, paid for and operated by the legal profession itself, and the provision of civil legal-aid counsel at the profession’s expense for certain kinds of cases. There are no doubt many other possible solutions."
Follow Charlie Smith on Twitter at twitter.com/csmithstraight.