Lawyers, especially criminal lawyers, come up against ethical and professional quandaries on a daily basis. No matter how long one has practiced, there will always be strange situations that come up where the lawyer will need advice and guidance on how to proceed. I wanted to talk about solicitor-client privilege this week and some of the ethical problems that arise but I realized I couldn’t do that without laying the foundation for how lawyers are governed and disciplined.
The Law Society of British Columbia is the governing body for lawyers. Its primary object is the protection of the public interest. Its secondary duty is to protect the interests of its members, provided those interests aren’t in conflict with the interests of the public. Basically, the Law Society looks out for the public first and lawyers second. It does this by ensuring that lawyers are qualified to practise; requiring lawyers to take a minimum of 12 hours education each year to stay current with the law; conducting reviews of a lawyer’s practice if needed; regulating and auditing trust fund accounting procedures; providing practice advice to lawyers on ethical and legal issues; taking over a lawyer’s practice if the lawyer is unable to continue practicing; and responding to complaints by investigating and disciplining lawyers who have violated the rules.
By rules, I’m referring to the Law Society Rules, as well as the Professional Conduct Handbook, both of which dictate how lawyers are to conduct themselves in their practice. While some people hold the view that lawyers are shady, doing whatever they can to make a buck and regarding themselves as above the law, it’s true that there are some lawyers who don’t act in accordance with the rules or the law. This is true for every profession out there. The reality is that the majority of lawyers take their profession very, very seriously. In our line of work, you’re only as good as your reputation and people talk. If you do something unethical or unprofessional, everyone will know about it. A reputation that took you years to build up can be torn down very quickly. The first thing we were told as young lawyers out of law school is that you never want to be contacted by the Law Society.
The Law Society is governed by the Legal Profession Act and its work is overseen by a board of governors called benchers. There are three types of benchers: elected, appointed, and life benchers. Elected benchers are 25 lawyers who are elected by other lawyers in nine regions across the province. Appointed benchers are up to six non-lawyers who are selected by the provincial cabinet to represent the public interest. Life benchers are benchers who have served for four terms or who have served as the president of the Law Society. They are recognized for life with the title of life bencher. These individuals, with the exception of the president, all volunteer their time to the Law Society. They are not paid for holding these roles.
Both lawyers and non-lawyers investigate and make decisions about lawyers so it’s not completely a self-governing system. There is always criticism when a profession is self-regulated. The biggest example that is always in the news is that of the police—why should they be policed by themselves? How is that objective? How will complainants get justice? (To start combating this criticism, B.C. has created the new Independent Investigations Office, a civilian agency that will oversee police-involved injuries and deaths. American lawyer Richard Rosenthal has been appointed to lead it.)
Disciplinary hearings are open to the public and are similar to court hearings. You can also look them up online, as well as any lawyer’s discipline history. Discipline decisions are also included in a Benchers’ Bulletin that is distributed to all the lawyers in the province. This injects transparency into the process and also keeps everyone, the public, and the legal profession informed of who is facing what kind of disciplinary action. Like I said earlier, it’s hard to keep something like this under wraps and it can be extremely embarrassing, not to mention potentially career-killing, to do something unethical or unprofessional as a lawyer.
Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at firstname.lastname@example.org.
A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.