The Law Society of Upper Canada should stick to its statutory knitting

As Yves Faguy already noted in this space, the soon-to-be-Law Society of Ontario’s demand that its members “create and abide by an individual Statement of Principles that acknowledges [their] obligation to promote equality, diversity and inclusion generally, and in [their] behaviour towards colleagues, employees, clients and the public” has been quite controversial. Perhaps understandably, the debate has focused on the substantive merits of such a policy in promoting diversity and inclusion, and on its impact on the freedoms of conscience and expression. Yet the policy raises other questions too, not least that of the scope of the Law Society’s regulatory authority―both as a matter of positive law, under the Law Society Act (LSA), and as a matter of principle and policy.

As I have already noted elsewhere, it is not obvious that the LSA allows the Law Society to demand that lawyers “promote” a particular set of values, be it ever so laudable―except, arguably, in the process of “prescribing oaths and affirmations for applicants for a licence or any class of applicants for a licence” (section 62(0.1.26). If it exists, the authority to do is presumably implicit in the Law Society’s “function … to ensure that … all persons who practise law in Ontario … meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide” (section 4.1(a)). This function, in turn, must be exercised “hav[ing] regard to” a number of “principles”, among which are duties “to maintain and advance the cause of justice” and “to protect the public interest” (section 4.2).

Is this enough?

Alice Woolley, in a post at Slaw, responds to what she takes to be discomfort “with the Law Society imposing moral values on its licensees” by pointing out that any number of lawyers’ professional obligations are morally contestable. “A legal regulator”, she concludes, “is charged with making value judgments on difficult moral questions; it cannot both discharge its mandate and be value neutral.”

That is true so far as it goes―but only so far. A legal regulator, like any other lawmaker, must indeed make value judgments, but it does not follow that it must, or even may, require people to “promote” them. The state can exact compliance, but not endorsement. More to the point, the morally tinged rules to which Prof. Woolley refers―for instance, rules regarding disclosure of privileged information or conduct in court― fall squarely within the scope of lawyers’ “professional conduct”, which the Law Society is charged with regulating.

The problem with the Law Society’s requirement that lawyers promote diversity―and that they do so not only in the course of their professional relationships but “generally”―is that it is not obviously part of “professional conduct”. The duty to comply with human rights legislation “with respect to professional employment”, which the Law Society’s Rules of Professional Conduct already impose (Rule 6.3.1) undoubtedly is. A requirement to be culturally sensitive as part of the broader duty of courtesy in professional settings would arguably also be. But the Law Society’s demand goes much further than these narrower and essentially “negative” duties. It is not limited to professional settings and professional relationships. Yet the legislation does not make it a function of the Law Society to regulate lawyers’ behaviour beyond that in which they engage in the course of legal practice.

Those who defend a broad view of the Law Society’s regulatory powers point to its duties to “the cause of justice” and “the public interest”. But these are not self-standing grants of power authorizing the Law Society to do, and to require lawyers to do, anything that might conceivable further some conception of justice or the public good. Rather, these are considerations which the Law Society must take into account “[i]n carrying out its functions, duties and powers under” the LSA, such as the function of ensuring that lawyers meet appropriate standards of professional conduct.

In its decision upholding the Law Society’s refusal to accredit Trinity Western University’s proposed law school, the Court of Appeal for Ontario observed “[t]here is no wall between ss. 4.1 and 4.2 of the LSA”. In that case, this meant that the duties set out in section 4.2 could and indeed had to be considered in taking a decision on a matter falling within section 4.1. Whatever one might think of the court’s reasoning on the other issues in that case, it was surely right on this point. But its converse is also true: that there is “no wall” between the Law Society’s function set out in section 4.1 and the considerations outlined in section 4.2 means that these considerations are not independent, and do not entitle the Law Society to act unless the action is already within the ambit of section 4.1. Moreover, while the Law Society is entitled to a good deal of deference in defining inherently vague concepts like “justice” and “public interest”, the range of reasonable interpretations of the relationship between these provisions is, in my view, rather narrow.

Beyond the narrow issues of vires under the LSA, it is worth asking the policy question of just how far we want the regulatory powers of professional regulators to extend. Does the law society’s remit run to any and all aspects of a lawyer’s life, so long at it can assert with any degree of plausibility that there is a benefit to regulating them? Given the existence of issues with substance abuse and mental health issues in the legal profession, can the Law Society conclude that a healthier profession is in the public interest and require lawyers to, say, abstain from alcohol and produce a statement of principles outlining their commitment to mindfulness? Or can the Law Society decide one of the political parties competing in a provincial or federal election will do more than its opponents to advance the cause of justice, and require lawyers to vote for and to promote that party? Quite apart from any constitutional concerns, these things are simply none of a professional regulator’s business.

Whatever one might think of the merits and constitutionality of requiring lawyers not only to comply with their obligations under human rights legislation but also to promote some of the values underpinning such legislation, such requirements, if they are to exist, must be authorized by the legislation governing the regulation of the legal profession.

In Ontario, this is not the case. And there is good reason for this. Professional regulators are set up to regulate professional conduct—not to ensure that professionals hold good and just beliefs. Theirs is an important, but limited function. The Law Society would do well to focus on it.