Imagine that you are a provincial Attorney General. The Cabinet, for whatever reason, has lost confidence in the provincial law society. The Premier asks you for options to decrease its effective authority in the self-regulation of the legal profession. She dares you to think big but also challenges you find a subtle way to achieve this goal.
Your first – and admittedly unimaginative – instinct is to change the composition of the governing board of the law society. You consider abolishing the law society entirely and replacing it with a new body in which elected lawyers will not form the majority of the board. You could even assert that this change is necessary for important objectives that make the legislation as a package incredibly difficult to oppose – say, access to justice, or indigenous representation. However, you have a nagging suspicion that this approach would be problematic. Legally, it would be vulnerable to a court challenge around the independence of the bar; politically, it could look like a frontal attack on self-regulation. You then consider keeping he law society but changing the composition of its board, currently dominated by lawyers elected by the profession, with a law society board dominated by provincial appointees. You realize, however, that this approach might also be too blatant, even for your government. In the hope of side-stepping such controversy, you seek a more nuanced option.
You decide to focus more narrowly on professional discipline. You briefly consider requiring the law society to discipline lawyers by application in superior court. Unfortunately, that too would seem like a frontal attack on self-regulation. If only you could maintain the formal disciplinary power and mechanisms of the law society but weaken the legal impact of any such proceedings to asymptotically approach meaninglessness….
At first you are flummoxed. But then you dig deeper and invoke, of all things, administrative law. First, you abolish the internal appeal mechanism within the law society and provide an appeal as of right to the court of superior jurisdiction. Few of the counterpart law societies in other provinces and territories have such an internal appeal mechanism, and so this change in itself may not be too controversial. Indeed, this change still leaves the law society power over an initial disciplinary determination.
Read More
