When Saint John lawyer Barry Morrison agreed to take on the Law Society of New Brunswick, he says, “I was effectively suing myself.” Like any practising Canadian lawyer, Morrison is a member of his province’s self-regulating body. Even so, he agreed to represent First Canadian Title Co. in a suit alleging the lawyers’ group deliberately blocked First Canadian from the local land title search business. “For years, the bread and butter of private law firms was property transfers,” Morrison says. “Title insurance effectively replaced the need for a lawyer to do a title search,” offering the service at lower cost to the public. In 2007, Justice Thomas W. Riordon ruled in favour of First Canadian, scolding the law society for attempts to impede the title insurer. “Members of the Law Society are not happy with the encroachment on what has traditionally been the work of lawyers,” the ruling said. (The law society appealed, and a decision from the provincial Court of Appeal is pending. Neither First Canadian nor the Law Society of New Brunswick would comment.)
Across Canada, provincial law societies are charged with defending the public interest and the integrity of the legal profession. They dictate everything from who can be a lawyer, to how professional misconduct is punished. But the interests of the public and the legal profession can sometimes clash. A rising chorus of critics say that leaving regulation in the hands of lawyers has driven up the cost of legal services while Canadians pay the price. The time has come, they say, to break lawyers’ control over their own industry, and let some true competition and oversight take hold.
Morrison may be a member of his law society, but he believes there’s a good argument against allowing any profession—even lawyers—to regulate itself. “The difficulty is being completely objective,” he says. “You may be the most honest person in the world, but there’s a human tendency to let personal interest creep in.”
Imagine being able to buy legal services from the grocery store. The Co-operative Group, one of England’s largest food retailers, doesn’t just sell milk and eggs—it offers will writing, help with property deals, and other forms of legal assistance, too, all services the average Canadian would have to see a lawyer to obtain. “I don’t see why consumers should not be able to get legal services as easily as they can buy a tin of beans,” one British minister said in 2005—a vision that is slowly becoming reality in Britain.
That year, far-reaching reforms were announced in England and Wales. Dubbed “Tesco Law” after that supermarket chain announced it would launch a legal store, the Legal Services Act was designed to make law look more like a business: more efficient, open, and responsive to the public. “Access to justice requires not only that the legal advice given is sound, but also the presence of the business skills necessary to provide a cost-effective service in a consumer-friendly way,” wrote Sir David Clementi in a 2004 report on the British system that became the basis for reform.
In England and Wales, outside companies can now own and run law firms and external investment is allowed, with the aim of encouraging growth and competition. Lawyers can team up with other professionals, offering services in a one-stop shop. According to Paul Paton, vice-chair of the Canadian Bar Association’s national ethics and professional issues committee, Canada’s rules make such practices virtually impossible here.
Long criticized for both representing the profession and regulating it, the Bar Council and Law Society for England and Wales, professional bodies for barristers and solicitors, split their functions in two: each now has one arm that governs the profession, and another that advocates for it. (Canadian lawyers argue that a similar split exists here, as the Canadian Bar Association is the voice of the profession, while law societies regulate it.) More significantly, English lawyers are no longer entirely self-regulated. In addition to forming an independent body to adjudicate complaints against lawyers, the Legal Services Act created the Legal Services Board, which is chaired by a layperson and will oversee all legal professionals in the country. Once it’s up and running next year, the board will monitor front-line regulators like the Bar Council and Law Society.
England’s reforms follow on the heels of similar changes in Australia, where a handful of law firms now trade on the stock market. Australian studies have shown incorporated law firms receive less complaints than traditional partnerships, says John Gray, an associate professor of management at the University of Western Sydney. “In a corporation, you have a board of directors to run [the firm],” he says. “Partners can get back to the business of being a lawyer.” Canadian firms can’t publicly list under the current legal regime, says Iain Scott, chief executive officer of McCarthy Tétrault. Even so, some firms (including his) have assumed a corporate structure of management.
The British changes seem common sense to consumers, but they were hard-fought, and brought with them a host of concerns. Above all, critics warned that the independence of the bar could be put at risk. “There is an inevitable anxiety that bodies like [the Legal Services Board] like to increase their influence,” says Russell Wallman, director of government relations for the Law Society of England and Wales. Lawyers pushed to ensure various safeguards would be in place, he says: the board, for example, is appointed in consultation with the lord chief justice and is “independent of government.” Beyond that, he adds, it must use a light touch. “It’s only if [front-line regulators] are clearly unreasonable that it can intervene.”
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