The News

“… any sense that lawyers are protecting a monopoly must be quashed.”

There’s a sentence that you don’t expect to hear uttered by the legal profession.

The Law Societies of Alberta, Saskatchewan, and Manitoba have announced a joint review of the regulation of the legal profession in their jurisdictions. It has commenced with a discussion paper which can be accessed here.

The discussion paper seems to be picking up where the CBA Legal Futures project left off in seriously considering things like regulating law firms instead of just lawyers, allowing for non-lawyer ownership of law firms, compliance-based regulation, and various other renewals of the way that the legal profession is regulated.

Some other quotes that caught my eye:

“… limitations we as regulators currently impose on lawyers are likely outdated.”

Until recently, I was required to keep certain documents in paper form in a three-ring binder.  Specifically a three-ring binder.  And withdrawals from trust accounts are supposed to be made exclusively by cheque.  When’s the last time you used a cheque?  Yeah. Outdated is a word for it.

“Compliance-based regulation is an outcomes-based approach that articulates expected objectives and outcomes with which a firm must comply and, rather than prescribing how a firm must achieve compliance with those objectives and goals, provides the firm with the flexibility and autonomy to determine how it will do so.”

I am in the process of trying to convert my practice to an entirely cloud-based infrastructure.  Trying to accomplish that in the context of the existing rules of the Law Society of Alberta, which are very prescriptive, has been challenging. The opportunity to instead say “this is what I need to accomplish, and here is how the system I’m using accomplishes it” would make my life a lot easier.

Law Societies are Serious

The discussion paper, which I have only had the opportunity to skim today, contains cogent information about the opportunities and risks associated with entity regulation, compliance-based regulation, and alternative business structures, but also takes a very positive view of all three, considering the concerns expressed by opponents and convincingly arguing that they are based on protectionist interests or overestimation of the associated risks.

With this discussion paper it seems like the prairie law societies have said that these things will happen, there are only details to be worked out. That’s exciting news.

What’s Missing

Given how well written the discussion paper is otherwise, I’m surprised at the fact that there is one major gap. The law societies still seem to perceive of their responsibilities as exclusively to set the boundaries of unacceptable behaviour, and to punish transgressions by lawyers, and soon law firms. They do not seem to acknowledge that the majority of problems big and small are caused by the actions of people experiencing challenges, and that avoiding having those challenges rise to the level of personal crises would do more to help the public, and avoid the problems that are currently only reacted to after they happen.

Ask yourself which you would rather have? A law society who tells you “Don’t worry, if your lawyer steals from you, we’ll disbar him,” or a law society who tells you “Don’t worry, we have free confidential financial planning, mental health, and practice advice services available to all our lawyers to help them deal with situations of unexpected debt or high stress or personal issues, with backup services for lawyers who are feeling overwhelmed. We have given our lawyers every possible dignified alternative to stealing from you, no matter what is happening to them. If they still steal from you, we will disbar them.”

I would rather the latter.  I think that shift – that the law society is not there to protect the public from lawyers as police are from criminals, but to actively support lawyers, all lawyers, in avoiding the sort of problems that cause lawyers to behave poorly – is the biggest opportunity for change in the way the legal profession is regulated. And I think that the costs of doing things like that could be justified by the reduction in insurance premiums to cover the costs of not doing them.

But don’t get me wrong.  For now, I’ll gratefully accept rules that don’t mention three-ring binders.


Categories: For Lawyers