We must stop taking self-regulation for granted

As the regulatory model continues to come under the microscope in many jurisdictions around the world, proactive and practical steps must be taken if the legal profession wants to retain the privileges to which it has become accustomed.

From reports on how and why regulators need to innovate, disrupt and re-evaluate the way they do business to conflict-of-interest concerns, “it’s an exciting time to be in regulation,” said moderator Rebecca Durcan at a March 2019 CBA-FLSC Ethics Forum panel on Modernizing Legal Regulation in Toronto. An adversarial relationship between a regulator and the licencees isn’t necessary. Regulators often assist lawyers with resources and tools, so the public is also helped, “which is, of course, the reason why we’re all here,” she said.

“There seems to be a belief that many self-regulated professions forget that it is a privilege to be self-regulated, to create your own rules, to discipline and regulate amongst your own,” said Durcan, a Law Society bencher and partner at Steinecke Maciura LeBlanc in Toronto who acts as counsel to several Ontario regulators.

Panellist Gillian Hadfield told attendees that changes to legal regulation are absolutely necessary. Without the right regulatory environment, “you can’t have those vibrant, adaptive, increasingly cost-effective, cost-efficient systems.”

Hadfield largely blames legal regulation for the high cost of law and the profession’s slow adaptation to digital and global transformation. The biggest impact is on ordinary people and smaller businesses, she said. The high cost of legal services keeps the vast majority of people outside the legal system, unable to address their problems with quality legal advice. Legal technologies are necessary because “we need faster, less expensive and more agile, smarter solutions,” she added.

Ethics rules are dictating business models and disallowing the types of models needed to drive innovation and cost reduction, said Hadfield, who is a University of Toronto law professor and an economist. Those rules include who is allowed to provide legal services, their education, how legal services are paid for and advertised, who is allowed to invest in legal businesses or invent legal technologies, how those technologies are financed and how the incentives for the creation of new ways of doing things are secured. But it’s not just about ethical issues, she said. “Legal regulation is economic regulation,” which “presumes, and bakes in, traditional lawyering.”

The Nova Scotia’s Barristers’ Society has done an extensive review of its regulatory and governance model in the past few years. When thinking about the way lawyers and the profession are regulated, “we wanted to change the conversation,” said Jacqueline Mullenger, the Society’s Director, Education & Credentials. “We wanted to be able to listen more to each other so that we could see what the profession needed because, to protect the public, part of what you have to do is work with lawyers and find out what they need to do their best job. And if you help them with that, they are more able to serve their clients,” she said.

“Protecting the public interest—that’s our job,” Mullenger said. “We’re not advocates for lawyers, but certainly I think there’s room for us to try and assist them to do a better job.” The Barristers’ Society takes a proactive, principled and proportionate approach to regulation, she added. “We don’t want just to wait until something bad happens and then go we’d better fix this.”

Unfortunately, for most regulatory bodies, the cultural mindset “is to sit back, generally, wait for government to impose restrictions, impose changes and impose different governance models,” said panellist Irwin Fefergrad, who is the Registrar for the Royal College of Dental Surgeons of Ontario. “And then regulatory bodies do what they do best, and that is to object.”

There’s too much of a tendency for professions to be insular, said Fefergrad. “We sort of talk amongst ourselves and we pat ourselves on the back and we say aren’t we doing a great job and we say yes we are.”

Legislation gives professionals the authority and the obligation to deal with complaints, members’ conduct and their competence or incompetence, said Fefergrad. “So we’ve got to balance out the public’s interest to what is our regulatory value of being fair and proportionate. We also realize today we cannot be everything to everybody. It’s not possible. There isn’t enough money in any of our budgets, whether we’re large or small, to do everything that everybody would want us to do. And it’s important that we take a risk-based assessment approach I believe as we look forward to the regulatory model.”

The regulatory process is cumbersome, detailed and often not a good solution, Fefergrad added. “There’s always going to be an unintended consequence. No action that we do as regulatory bodies is benign. There’s always an effect. There’s nothing that we do that we can say well that’s benign…and we need to be nimble and agile in order to address what we’ve done to effect change.”

Ann Macaulay is a regular contributor based in Toronto