Canadian law societies don’t have the same problems, argues Stéphane Rivard, a Montreal lawyer and president of the Federation of Law Societies of Canada, an umbrella for the 14 provincial and territorial bodies (Quebec has two). “What triggers government intervention is when you have a lack of rigour [in regulating the profession and investigating complaints],” he says. “That’s not the case here.”
That, however, is up for debate. Canada hasn’t seen reforms comparable to those abroad, but “I’m skeptical it’s because lawyer self-regulation works here,” says Alice Woolley, an associate professor with the University of Calgary’s faculty of law. “There’s been insufficient scrutiny to assess that.” Unlike Australia or England, Canada has no independent legal ombudsman; members of the public must appeal to a law society-funded commissioner. And while the Law Society of England and Wales was criticized for receiving one complaint for every six of its members, turns out the Law Society of Upper Canada, the largest in the country, doesn’t have a much better record. In 2007, the LSUC had 38,879 lawyer members, and got 6,157 complaints, a ratio roughly equal to its English counterpart.
Philip Slayton is a former Bay Street lawyer and author of Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession. He calls the disciplinary record of our law societies a “patchwork quilt” that varies from province to province, and even from one case to another. “I think the idea of a law society disciplining its own members is contrary to the basic principles of justice,” he says. Beyond that, “they’ve done a bad job.”
Take the case of former Law Society of Upper Canada treasurer George Hunter, which Slayton discusses in his book. In 2004, Hunter sat on a law society panel that for the first time disbarred a lawyer for sexually harassing a client (the disbarment was later overturned on appeal). In 2007, after Hunter admitted he himself had engaged in a relationship with a client—one of three extramarital affairs he’d been juggling—the prominent lawyer found himself back before the panel, this time on the opposite end.
Hunter’s former client was not at the hearing, but her impact statement told of depression, anxiety and a diagnosis of post-traumatic stress disorder, the Lawyers Weekly reported. Hunter’s counsel presented the panel with a stack of 27 “glowing reference letters” on his behalf, many of them penned by prominent benchers (members of the law society’s governing board). “Spectators remarked on the irony of benchers urging three fellow benchers to mete out the mildest possible sentence to a former bencher guilty of conflict of interest,” the lawyers’ newspaper reports. Hunter was suspended from practice for 60 days.
Whether it creates a conflict of interest when law societies investigate their members is “open to question,” says Paul Paton, vice-chair of the Canadian Bar Association’s national ethics and professional issues committee, and associate professor at the University of the Pacific’s McGeorge School of Law. But, he adds, “a perceived conflict of interest is often equal, in the public mind, to an actual one.” Most dangerously, that perception can put people off from complaining at all. In one British survey, 81 per cent of people who’d used a solicitor in the previous three years said they’d rather complain to an independent body; if it had to be to another lawyer, 52 per cent wouldn’t complain at all.
It’s unfortunate, says Manzoor, the legal services ombudsman for England and Wales, because a lack of public confidence can undermine the entire legal system. “We’re talking about the rule of law. We’re talking about access to justice,” says Manzoor, who supports independent complaints resolution. “It’s not ‘lawyer knows best’; it’s a service that’s being provided,” she says. “We’ve got to make sure it’s of the highest standard, because it affects the public in such a way.”
Yet, unlike in Australia or England, the Canadian public—and its elected officials—have been surprisingly mute on the subject of legal reform. MacPhail can’t help but wonder whether meek acceptance is part of our culture. “I can recall going to a movie once,” she says. “The lights went out, but the movie didn’t start. Everybody just sat there.” After sitting quietly in the dark for several minutes, waiting in vain for the movie to begin, she says, “we finally got up and told someone.”
With so many Canadians losing faith in the justice system—or feeling shut out of it entirely—change seems inevitable. Legal reforms abroad were intended to empower the public, instead of lawyers; in England and Australia, “change came for good reasons,” Woolley says. “Those reasons exist here.”
Before widespread reform can happen in Canada, though, Paton suggests that public confidence in our legal system might have to hit an all-time low. “I think it will take one more scandal,” he says.
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