CANADA’S LEGAL PROFESSION: SELF-REGULATING IN THE PUBLIC INTEREST?

Abstract

The only justification for state actors to delegate the legislative and judicial functions inherent in the self-regulation of a profession is the public interest. But this paper argues that Canada’s self-regulating legal profession was born out of professional self-interest. For much of its history, the profession was not called upon to justify its privilege to self-govern. When external pressure forced the profession to more clearly define the public interest it served, the profession argued its interest and the public interest coalesce around a core value – an independent bar. For the bar to be independent, the profession insisted, it must be regulated through law societies comprised of lawyers elected by other lawyers. A central question this paper asks is whether self-regulation is essential to the existence of an independent bar. After briefly examining the curious birth of a self-regulating legal profession in Upper Canada, the paper will consider both mythical and principled reasons advanced by the legal profession to justify self-regulation. It will argue that the profession frequently conflates self-regulation with the right of the individual to retain independent legal representation. Only recently have law societies and bar associations embraced a more expansive definition of the public interest. The profession itself, however, is averse to change and frequently expresses disagreement with the direction in which its leaders seek to take it. The paper argues that while there is now general recognition on the part of the profession that it must govern itself in the public interest, professional self-interest continues to stand in the way of necessary reforms. A profession truly dedicated to the public interest would make greater efforts to address significant problems relating to access to justice, client centred service, and public confidence in the discipline process for lawyers. As a result of the profession’s apathy, the public perceives lawyerly self-government as conflicted, self-serving and opaque. After briefly reviewing how governments in other countries responded after concluding that their legal professions had adopted reactionary attitudes to reform, the paper will conclude by considering the future of lawyerly self-regulation in Canada.