Lawyer Regulation in Canada: Towards Greater Uniformity

• Author: Alain Roussy
• Position: Assistant professor and Ontario Bar Association Foundation Chief Justice of Ontario Fellow in Legal Ethics and Professionalism Research for 2016-2017, Faculty of Law, Common Law Section, University of Ottawa, Ottawa, Canada. The author would like to thank Rebecca Porter, J.D. student, for her research assistance.
• Pages: 409-424

Lawyer Regulation in Canada: Towards Greater

Uniformity

A

LAIN

R

OUSSY

*

Canada is a federation comprised of ten provinces and three territories.

Each of these jurisdictions has a law society (or two, in the case of Quebec)

1

governed by lawyers that is mandated to regulate the legal profession in the

public interest.

2

Some of these law societies are older than Canada itself.

3

Law societies are explicitly recognized by provincial and territorial

legislation as the sole self-regulating authorities of the legal profession

within each jurisdiction.

4

Among other things, they decide matters of

admission, competence, and discipline.

5

Few have questioned their existence

or authority.

6

Aside from matters of tradition, there are a number reasons

that explain adherence to such a self-regulation model, including efficiency,

expertise, and independence from the bar and the judiciary.

7

Though law

societies have been working in a much more concerted fashion in recent

* Assistant professor and Ontario Bar Association Foundation Chief Justice of Ontario

Fellow in Legal Ethics and Professionalism Research for 2016-2017, Faculty of Law, Common

Law Section, University of Ottawa, Ottawa, Canada. The author would like to thank Rebecca

Porter, J.D. student, for her research assistance.

1. Quebec is Canada’s only jurisdiction with a civil law system. It also has a clear distinction

between lawyers and notaries, each profession having its own area of practice and each being

governed by a separate law society—the “Barreau du Qu´ebec” for lawyers and the “Chambre

des notaires du Qu´ebec” for notaries. See Fiona M. Kay, Intraprofessional Competition and

Earnings Inequalities Across a Professional Chasm: The Case of the Legal Profession in Qu´ebec, Canada,

43

L. & S

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’

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901, 904-05 (2009).

2. See, e.g., Law Society Act, R.S.O. 1990, c L.8, s 4.2 (Can.). The regulation of legal services

is one of provincial (as opposed to federal) jurisdiction under the Canadian Constitution. See

Constitution Act, 1867, 30 & 31 Vict., c 3 (U.K.), reprinted in R.S.C. 1985, app VI, no. 92

(Can.).

3. For example, Ontario’s law society, the Law Society of Upper Canada, was created in

1797, well before the Canadian Confederation in 1867. This explains the society’s historical

name, “Upper Canada,” which was the former name for Ontario. See History,

L

AW

S

OC

’

YOF

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PPER

C

AN

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, http://www.lsuc.on.ca/with.aspx?id=427 (last visited June 17, 2017).

4. See, e.g., About the Law Society,

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AW

S

OC

’

YOF

U

PPER

C

AN

.

, http://www.lsuc.on.ca/

with.aspx?id=905 (last visited June 18, 2017); Law Society Act at ss 4.1, 4.2, 5.

5. See Alan Treleaven, Moving Toward National Bar Admission Standards in Canada, 83

B

AR

E

XAMINER

17, 17 (2014), http://www.ncbex.org/pdfviewer/?file=/assets/media_files/Bar-

Examiner/articles/2014/830314-Treleaven.pdf.

6. See, e.g., Richard Devlin & Porter Heffernan, The End(s) of Self-Regulation?, 45

A

LTA

.L.

R

EV

.

169, 171 (2008); Jeff Roberts, Time to Streamline the Societies?,

C

ANADIAN

L

AWYER

(Jan. 1,

2009), http://www.canadianlawyermag.com/468/Time-to-streamline-the-societies.html.

7. See generally

A

LICE

W

OOLLEY ET AL

.

,

L

AWYERS

’ E

THICS AND

P

ROFESSIONAL

R

EGULATION

(Markham, Ont.: LexisNexis Can. ed., 2d ed. 2012).

THE YEAR IN REVIEW

AN ANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW

PUBLISHED IN COOPERATION WITH

SMU DEDMAN SCHOOL OF LAW

410 THE INTERNATIONAL LAWYER [VOL. 50, NO. 3

years, each law society remains an independent body with full statutory

authority to regulate the legal profession within its jurisdiction.

The Federation of Law Societies of Canada (Federation) is the national

“coordinating body” for Canada’s provincial and territorial law societies.

8

From its humble beginnings in 1972, the Federation’s influence has grown

enormously.

9

The Federation is involved in a number of national regulatory

initiatives that are creating substantially more uniformity amongst the law

societies.

10

The increasingly important role of the Federation cannot be

overstated. In fact, it could be said that, at least in some instances, the law

societies are “uploading” their traditional and fundamental responsibilities to

the national entity.

11

This is a rather remarkable development, particularly

when one notes that it is not being driven by an angry public or a controlling

government, but rather by the law societies themselves.

12

Part 1 of this paper will briefly discuss the self-governing model for law

societies in Canada and provide an overview of the Federation. Part 2 will

focus on the role of the law societies and the Federation in regulating legal

education in Canada. Part 3 will examine various developments in lawyer

regulation in Canada spearheaded by the Federation. Finally, Part 4 will

address transnational lawyering in the Canadian context. The overarching

theme of the paper is one of increasing national regulatory uniformity.

I. Part 1: The Regulatory Model

A. T

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ROVINCIAL AND

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ERRITORIAL

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AW

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OCIETIES

The universal model of lawyer regulation in Canada’s provinces and

territories is one of self-regulation, meaning the regulation of lawyers is

largely the responsibility of lawyers. The law societies that started appearing

in the country at the end of the 18th century, generally modeled on British

Inns of Court, already had a high level of independence. Education of

aspiring lawyers and the accompanying control over admission to the

profession were fundamental powers of the law societies. As the years went

on, the level of independence and self-regulation of law societies grew to

encompass the enforcement of codes of conduct, the handling of complaints

against lawyers, the power to discipline lawyers (including the power to

disbar a lawyer),

13

the creation of mandatory insurance programs,

14

the

8. See From Conference to the Nation’s Capital,

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ED

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NOF

L

AW

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YS OF

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AN

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, http://flsc.ca/

about-us/yesterday-and-today/ (last visited June 18, 2017).

9. See id.

10. See National Initiatives,

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NOF

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AW

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YS OF

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AN

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, https://flsc.ca/national-initiatives/

(last visited June 19, 2017).

11. See generally From Conference to the Nation’s Capital, supra note 8.

12. See id.

13. See W. Wesley Pue, Cowboy Jurists and the Making of Legal Professionalism, 45

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LTA

. L.

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EV

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29, 36-41 (2008).

THE YEAR IN REVIEW

AN ANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW

PUBLISHED IN COOPERATION WITH

SMU DEDMAN SCHOOL OF LAW