Although lawyers there had concerns around the reform, they were also pragmatic—after all, it’s not England’s first attempt to crack open the legal services market. Twenty years ago, for example, the government created a new profession of non-lawyers to handle property deals. Prices fell as a result. “Obviously, it would be convenient for us if everybody had to go to a solicitor,” Wallman says. “But the reality is, you don’t have to have the full range of knowledge a solicitor does to perform [conveyancing] effectively.”
In Canada, where low-cost providers of legal services remain scarce, lawyers would apparently take a different view. A 2007 report from the Competition Bureau concluded that many law society restrictions “have the effect of raising costs to consumers.” The most evident of these, it noted, are restrictions around low-cost providers. “Canadian lawyers still have a monopoly on [providing] legal services and legal advice,” says Steve Hynes, director of the London-based Legal Action Group. “That’s a big difference. Here, the monopoly has been chipped away.”
In Canada, the battle lines have been drawn. It’s not just in New Brunswick that lawyers have tangled with title insurers, for instance. For eight years, the Canadian Bar Association banned First Canadian from advertising in its magazine—a stricture that wasn’t lifted until last year, when the CBA implemented a new advertising and sponsorship policy. In B.C., after the Competition Bureau learned some lawyers might be refusing to witness mortgage refinancing documents done by title insurers, it warned them against “forming anti-competitive agreements.”
What’s more, last year, Ontario’s law society assumed regulatory control of the province’s paralegals, a clear conflict of interest, said the Competition Bureau, as lawyers compete with them over some services. Paralegals are now formally banned from working in certain areas, including family law. “It’s devastating for the public, although you do not hear them,” says one Toronto paralegal, adding that many of her clients couldn’t afford to hire a lawyer. Soon they won’t be able to hire her, either—because of the expenses associated with regulation (including insurance and law society membership fees), she’s going out of business.
Law societies don’t just restrict other providers; they do it to their own members, too. Lawyers’ ability to advertise, for example, is limited. As noted in the Competition Bureau report, the Law Society of Newfoundland and Labrador forbids its members from advertising discounted prices. Yukon’s law society prohibits lawyers from using photos, logos or symbols, and restricts the size of lawyer advertisements (their restrictions are currently under review). In several provinces, lawyers can’t advertise their fees compared to other lawyers. Not only do such rules hinder the public’s ability to shop around, “they create less incentive for lawyers to be innovative” in the services they offer, says Chris Busuttil, director of advocacy coordination at the Competition Bureau.
All these restrictions, law societies insist, are in place to protect consumers. Limiting who can provide legal services saves us from shoddy work. Advertising restrictions keep misleading information from confusing the public. And multidisciplinary practices raise conflict of interest issues, as lawyers might be beholden to someone other than the client. Just like government, law societies work in the public interest, says Derry Millar, treasurer of the Law Society of Upper Canada: “We elect politicians to sit in Parliament, and [they] run programs for the public benefit.”
Unlike government, though, a law society’s board of directors isn’t elected by, nor answerable to, the public. Ontario’s law society is governed by 50 “benchers,” 40 of whom are elected lawyers (another eight are government-appointed lay people; two are government-appointed paralegals). To become elected, lawyers must inevitably appeal to their constituency: lawyers. “Even the most cursory review of Bencher’s election campaign statements in Ontario during the 1990s and early 2000s reveals a remarkable commitment to protect lawyer’s interests,” for example, by keeping members’ fees low, wrote W. Wesley Pue, the Nathan T. Nemetz professor in legal history at the University of British Columbia, in a 2006 paper.
Pue argues that Canada is not so different from Australia or England, pre-reform. In those countries, traditional regulators failed to encourage competition or innovation, he notes. The complaints process seemed to disadvantage everyone but lawyers themselves. Perhaps most significantly, legal services were becoming too expensive for all but the wealthy to afford. “In each country, the legal profession has found it difficult to respond to its critics,” he wrote in the paper. “Canadian legal professionals are surprisingly vulnerable to similar criticisms.”
Like it or not, change may be coming. “Canada is now significantly out of step with everyone else on this,” says Alice Woolley, assistant professor at the University of Calgary’s faculty of law. “It may only be a matter of time.”
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