Thursday Thinkpiece: Salyzyn on the Judicial Regulation of Lawyers in Canada

AuthorAdministrator
DateJanuary 08, 2015

Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.

The Judicial Regulation of Lawyers in Canada

Amy Salyzyn
Dalhousie Law Journal, 2014, Forthcoming

Excerpt: Introduction and Part IV

[Footnotes omitted. They can be found in the original via the link above]

Introduction

This article traces developments in lawyer regulation in Canada over the last forty years, with a focus on the judicial regulation of lawyers. The role that judges play in regulating Canadian lawyers has not, to date, been the subject of extended and detailed scholarly analysis. This is a gap that needs to be filled. In the absence of a systematic analysis of judicial regulation in Canada, we lack a complete picture of the current regulatory landscape governing this country’s legal profession and how it came to be. Having this more complete picture in hand is essential in considering the best way forward in regulating Canadian lawyers.

The question of whether Canadian lawyers ought to be trusted to govern themselves has been repeatedly raised by the public, policy-makers and the academy over the past several decades. The legal profession has responded on a number of fronts, adopting what has been characterized as a “regime of defensive self-regulation.”1 The analysis in this article complements and complicates this account by arguing that, alongside the profession’s efforts at defensive self-regulation, there has been a steady stream of aggressive judicial regulation. The central argument of this article is two-fold: first, that courts have come to occupy an increasingly active role as regulators of the Canadian legal profession in the past several decades; and, second, that the measures taken by the courts have resulted in a regulatory regime more attentive to the public interest. In advancing these arguments, this article seeks not only to present a more accurate picture of the current status of lawyer regulation in Canada but also to provide a better foundation from which to discuss future reforms.

Much of the current attention given to how the Canadian legal profession is regulated is a result of moves away from lawyer self-regulation in other common law jurisdictions. Reforms in these jurisdictions—most notably, Australia and England and Wales—have prompted self-reflection in Canada and raised a number of important questions. Why haven’t we seen similar changes in Canada? Should Canada head in the same direction as other countries? The account that this article provides of the emergence of aggressive judicial regulation helps to direct our consideration of these questions in several important respects. First, it clearly and methodically demonstrates that the profession’s claim to self-regulation is highly attenuated. As will be explored in detail below, judges have powerfully inserted themselves in all of the areas considered to be constitutive of self-regulation and have done so in a manner that has advanced the public interest. This observation seriously undermines any sort of blanket claim that the public interest requires Canadian lawyers to have independence from external control.

Second, the analysis here also calls into question the assumption advanced via the “lawyer-judge bias” theory that judges, by virtue of being former lawyers, are inherently deficient regulators of lawyers who will inevitably favour the interests of their former colleagues at every turn.2 To the contrary, a close and careful look at judicial regulation reveals that measures taken by Canadian courts have repeatedly promoted the public interest over the interests of the profession. This suggests that any discussion of regulatory reform should not focus exclusively on a binary weighting of governmental control versus professional self-control but also include the judiciary as a major and helpful regulatory player.

This article proceeds in four parts. Part I covers off some preliminary issues, outlining in more detail the nature of the “lawyer-judge bias” theory that has been advanced and discussing how several key concepts—namely self-regulation, judicial regulation, and public interest—are defined and used in this article. Part II briefly touches on the political background for the judicial regulatory measures discussed, with particular attention to a series of governmental inquiries beginning in the 1970s that served to sharpen public scrutiny of the legal profession. Parts III and IV form the heart of the article and make the case that a regime of aggressive judicial regulation has emerged alongside the profession’s defensive efforts.

Part III focuses on developments in judicial regulation of the practice of law and, in particular, regulation relating to the post-entry competence of lawyers. Beginning in the late 1970s, courts established themselves as aggressive co-regulators in this area through their administration of civil actions in negligence. In a series of decisions, courts rejected exceptional treatment for lawyers in relation to negligence claims. The scope of liability faced by lawyers in negligence was also expanded in certain areas.

Part IV takes up the judicial regulation of the business of law and canvasses measures taken in relation to (1) entry restrictions, (2) post-entry limits on competition (in particular, in the areas of advertising, fees, and unauthorized practice of law) and, (3) post-entry conduct rules (specifically relating to conflicts of interest and lawyer withdrawals from the record). In each of these areas, courts have taken measures that have favoured the public interest over the self-interest of the profession and, in some cases, directly rejected contemporaneous standards adopted by the legal profession itself.

IV. Regulating the business of law: entry, competition, conduct

In addition to making their mark regulating the practice of law and, in particular, post-entry competence, the courts have also taken a number of significant measures in the last several decades with respect to regulating the business of law. This Part examines judicial measures in three areas: entry restrictions, post-entry limits on competition, and post-entry conduct rules.

1. Entry restrictions

As noted in Part II, one potential abuse of self-governing powers is the imposition of unnecessary entry restrictions. Rules restricting entry to a profession are, of course, not inherently problematic. Requiring a certain level or type of education before being allowed to practice law, for example, is one way to ensure that those providing legal services to the public have the appropriate training to do so. Entry restrictions can, however, also operate to more nefarious discriminatory and anti-competitive ends. Indeed, the two types of entry restrictions that are the subject of this section—citizenship requirements and constraints on inter-provincial firms—were found by courts to be, respectively, discriminatory and motivated by concerns to limit competition. Over the legal profession’s objections, courts declared the restrictions constitutionally invalid and stepped into a core regulatory area with considerable force and impact.

In general, provincial and territorial law societies regulate admission to the practice of law by prescribing entrance requirements and evaluating whether applicants have met these requirements. The courts have no direct authority over this regulatory area, although they are empowered to judicially review the validity of decisions made by the law societies in individual cases. With the introduction of the Charter of Rights and Freedoms in 1982, however, the courts were given a new tool to directly review the validity of admission requirements. Two significant decisions by the Supreme Court of Canada shortly after the introduction of the Charter—Andrews v. Law Society of British Columbia and Black v. Law Society of Alberta— resulted in the invalidation of certain entry restrictions. These decisions, together with various legislative and policy reforms that followed, ushered in a significantly liberalized regime with respect to the admission of foreign professionals to practice and the interprovincial mobility of lawyers.

a. Citizenship and residency requirements

In Andrews, the Supreme Court of Canada struck down the requirement that applicants to British Columbia’s legal profession be Canadian citizens. At the time, “Canadian citizenship was virtually a universal requirement for admittance to any of the provincial law societies” and law societies were strong advocates of the limiting entry to the profession to Canadian citizens. On several occasions previous to Andrews, the courts had considered citizenship requirements for admission to law practice and, despite raising questions as to the justifiability of such requirements, had declined to find them invalid. These cases were heard before the equality provisions of the Charter were in force, however, which...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT