The answer to this question is not clear. On the one hand, the threat of Rule 57.07 may provide an incentive for inexperienced lawyers to take their responsibilities more seriously and ensure that they are adequately prepared for court proceedings. On the other hand, it could also lead to a situation where young lawyers are too intimidated by the potential consequences of making mistakes in court and become overly cautious in their approach, which could ultimately be detrimental to their clients’ cases. Ultimately, it is up to each individual lawyer to decide how best to approach their cases and whether or not they feel comfortable taking risks in order to achieve the best possible outcome for their clients.
Yes, of course! We are always open to exploring new ideas and perspectives. Please feel free to share your thoughts and we can discuss them further.
The best way to prevent the spread of COVID-19 is to practice social distancing, wear a face covering when in public, wash your hands often with soap and water for at least 20 seconds, avoid touching your face, cover coughs and sneezes, clean and disinfect frequently touched surfaces, and stay home if you are feeling sick.
The theory of social constructionism is a sociological theory that suggests that reality is socially constructed. This means that the way we perceive and understand the world around us is shaped by our interactions with others, our culture, and our environment. It suggests that reality is not fixed or absolute, but rather it is constantly changing and being re-constructed through our interactions with each other. Social constructionism also emphasizes the importance of language in constructing reality, as language shapes how we think about and interact with the world.
Social constructionism has been used to explain a variety of phenomena, including gender roles, racial identity, sexuality, and even scientific knowledge. It has been used to challenge traditional views of these topics by showing how they are socially constructed rather than fixed or natural.
In addition to this theory, there are several related terms associated with social constructionism:
• Discourse: A set of shared beliefs and practices within a particular group or society which shape how people think about certain topics.
• Ideology: A set of ideas or beliefs held by an individual or group which shape their understanding of the world.
• Power: The ability to influence others’ thoughts and actions through control over resources or access to information.
• Hegemony: The dominance of one group over another through cultural norms and practices which legitimize their power.
Lawyer-judge bias is a phenomenon in which lawyers and judges may be influenced by their personal relationships, experiences, or beliefs when making decisions. This type of bias can lead to unfair outcomes in the courtroom, as the judge’s decision may be based on something other than the facts of the case. It is important for lawyers and judges to remain impartial and unbiased when making decisions in order to ensure that justice is served.
Self-regulation is the ability to control one’s emotions, thoughts, and behaviors in different situations. Self-regulation involves being aware of one’s own emotions and reactions, as well as being able to manage them in a constructive way. It also involves setting goals and working towards them, managing stress, and making decisions that are in line with one’s values. Self-regulation is an important skill for success in life, as it helps individuals stay focused on their goals and make better decisions.
The public interest is defined as the collective well-being of society, or the common good. It is a broad concept that encompasses a variety of issues, including economic prosperity, environmental protection, public health and safety, civil rights and liberties, and access to education. The public interest is often invoked when making decisions about policy or legislation that will affect large numbers of people.
The regulation of the legal profession in the United States is largely left to the individual states. Each state has its own rules concerning admission to practice, and the details of a lawyer’s professional conduct, and it is usually subject to judicial regulation. The American Bar Association (ABA) is a voluntary association of lawyers and law students, but it does not have any official regulatory authority over the legal profession.
In some states, such as California, Texas, and New York, there are separate organizations that regulate lawyers. These organizations are known as bar associations or state bar associations. They are responsible for setting standards for admission to practice law in their respective states, as well as disciplining attorneys who violate those standards. In addition to regulating admission to practice law in their respective states, many bar associations also provide continuing legal education programs for attorneys and offer other services such as providing free legal advice clinics or pro bono services.
In addition to state bar associations, there are also national organizations that regulate lawyers on a national level. The most prominent of these is the American Bar Association (ABA). The ABA sets ethical standards for lawyers across the country and provides resources for attorneys on topics such as professional responsibility and continuing legal education. The ABA also accredits law schools throughout the United States and provides guidance on issues related to legal education.
Finally, some states have adopted laws that allow non-lawyers to provide certain types of limited legal services without having to be admitted to practice law in that state. These laws are often referred to as “limited scope representation” or “unbundled services.” Under these laws, non-lawyers can provide certain types of assistance with matters such as document preparation or filing court documents without having to be admitted to practice law in that state.
The political background of the series of inquiries is the ongoing debate over the role of government in society. This debate has been ongoing for centuries, and it has become increasingly relevant in recent years as governments have taken on a larger role in providing services and regulating economic activity. The inquiries are an attempt to assess the effectiveness of current policies and to identify areas where changes could be made to improve outcomes. They also provide an opportunity for citizens to voice their opinions on how government should be run.
The practice of law has long been regulated by the judiciary, but in recent years, there has been an increased focus on negligence and malpractice. This is due to a number of factors, including the rise of technology and the increasing complexity of legal matters. As a result, courts are now more likely to hold lawyers accountable for their actions and impose sanctions when appropriate. This new era of judicial regulation has led to greater scrutiny of lawyers’ conduct and a heightened awareness among attorneys about their ethical obligations. In addition, courts have become more willing to award damages for negligence or malpractice in order to deter future misconduct. As such, it is important for attorneys to understand their ethical duties and take steps to ensure that they are meeting them in order to avoid potential liability.
Rejecting exceptions is the process of not allowing an exception to be thrown. This can be done by using try-catch blocks or by validating user input before it is used in a program. By validating user input, any invalid data can be identified and handled appropriately without throwing an exception.
Eliminating immunity would be a difficult and potentially dangerous task. Immunity is an important part of the body’s natural defense system, helping to protect it from disease and infection. Without immunity, people would be more susceptible to illnesses and infections, leading to increased rates of illness and death. Additionally, eliminating immunity could have unintended consequences on other aspects of health, such as allergies or autoimmune diseases. For these reasons, it is not recommended that immunity be eliminated.
Concurrent liability can be secured by having all parties involved in a transaction sign a contract that outlines the terms and conditions of the agreement. This contract should include details such as who is responsible for what, how any disputes will be resolved, and any other relevant information. Additionally, it is important to ensure that all parties are aware of their obligations and responsibilities under the agreement. Finally, it is important to have an attorney review the contract before signing to ensure that all parties understand their rights and obligations.
The standard of care is the level of care that a reasonable person would provide in a given situation. It is based on the accepted practices and standards within a particular field or profession. The standard of care is used to determine whether an individual has acted negligently or not, and can be used as a benchmark for determining liability in medical malpractice cases.
The opening up of new frontiers of liability can be seen in a variety of areas, including product liability, environmental law, and medical malpractice. In product liability, companies are increasingly being held liable for the safety and quality of their products. This includes not only the physical product itself but also any associated services or warranties that may be provided. Environmental law is another area where new frontiers of liability have been opened up. Companies are now being held accountable for any damage they cause to the environment, whether it be through pollution or other activities. Finally, medical malpractice has become an increasingly important area of liability as well, with doctors and other healthcare professionals being held responsible for any mistakes they make in treating patients.
Lawyers owe a duty of care to non-clients in certain circumstances. This includes situations where the lawyer has assumed responsibility for the matter, or where the lawyer knows that the non-client is relying on their advice. In such cases, lawyers must exercise reasonable care and skill in providing advice and services to the non-client. If a lawyer fails to do so, they may be liable for any losses suffered by the non-client as a result.
Individuals are responsible for the costs associated with their own health care. This includes any medical bills, medications, and other related expenses. Individuals should also be aware of their insurance coverage and any out-of-pocket costs that may be required. It is important to understand the terms of any health plan before signing up for coverage.
Judges are responsible for ensuring that all competitors in a competition have the necessary skills and knowledge to compete safely and fairly. Judges should be familiar with the rules of the competition, as well as any relevant safety regulations or guidelines. They should also be aware of any post-entry requirements, such as medical clearance or proof of insurance. Competitors should be informed of these requirements prior to entering the competition, and judges should ensure that all competitors meet them before allowing them to compete. Judges should also monitor competitors throughout the competition to ensure they are following all rules and regulations.
Judicial regulation of the business of law is a complex and evolving area of law. In the United States, the regulation of lawyers is primarily left to the states, which have adopted various rules governing entry into the legal profession, competition among lawyers, and conduct by lawyers.
Entry into the legal profession is typically regulated by state bar associations. These organizations are responsible for setting standards for admission to practice law in their respective states. Generally, these standards include passing a bar exam and meeting certain educational requirements.
Competition among lawyers is also regulated by state bar associations. These organizations typically set rules governing advertising and solicitation by attorneys, as well as rules prohibiting fee-splitting between attorneys and non-lawyers. Additionally, many states have adopted ethical codes that govern how attorneys may interact with clients and other attorneys in order to ensure fair competition in the marketplace.
Finally, state bar associations are responsible for regulating attorney conduct. This includes setting standards for professional responsibility and disciplining attorneys who violate those standards. Attorneys who fail to comply with these regulations can face sanctions ranging from reprimands to disbarment from practicing law in their respective states.
Entry restrictions vary depending on the country. Generally, visitors must have a valid passport and visa to enter a foreign country. Some countries may also require additional documents such as proof of financial means, health certificates, or other forms of identification. Additionally, some countries may impose travel bans or other restrictions due to public health concerns or political instability.
Citizenship and residency requirements vary from country to country. Generally, a person must be a citizen of the country in order to be eligible for residency. In some countries, such as the United States, permanent residency may be granted to individuals who have been living in the country for a certain period of time. In other countries, such as Canada, permanent residency may be granted to individuals who have been sponsored by family members or employers. Additionally, some countries may require applicants to meet certain criteria in order to qualify for citizenship or residency status.
The practice of law across provincial boundaries is generally prohibited in Canada. Each province and territory has its own set of rules and regulations governing the practice of law, and lawyers must be licensed in the jurisdiction where they are practicing. In some cases, a lawyer may be able to obtain a temporary license to practice in another province or territory, but this is not always possible.
Post-entry limits on competition are restrictions that limit the number of competitors in a given market or industry. These limits can be imposed by governments, regulatory bodies, or private organizations. They are typically used to protect existing businesses from excessive competition and to ensure that new entrants have a fair chance at success. Examples of post-entry limits include caps on the number of licenses issued for certain types of businesses, restrictions on the number of firms allowed to operate in a particular geographic area, and requirements that new entrants must meet certain criteria before they can enter the market.
Advertising is a form of communication used to persuade an audience (viewers, readers or listeners) to take some action with respect to products, ideas, or services. It includes the name of a product or service and how that product or service could potentially benefit the consumer. Through advertising, companies attempt to inform and influence consumers about their products in order to convince them to purchase them.
Unauthorized practice of law is illegal and can result in criminal charges. It is defined as providing legal advice or services without being licensed to do so. This includes giving legal advice, representing someone in court, or drafting legal documents.
for the program are $50.00 per person and include all materials, instruction, and a light snack.Â Space is limited to 10 participants.
To register for the program, please visit our website at www.example.com/programs and fill out the registration form. Payment can be made online or in person at our office during regular business hours. If you have any questions about the program or need assistance with registration, please contact us at [email protected] or call us at 555-555-5555. We look forward to seeing you there!
Conduct rules are guidelines that set out expected behavior for members of an organization or group. They may include expectations about how to interact with other members, how to dress, and what language is acceptable. Conduct rules can also include prohibitions against certain behaviors such as harassment, discrimination, and violence. The purpose of conduct rules is to ensure a safe and respectful environment for all members of the organization or group.
can arise in many different ways. For example, a conflict of interest may arise when an individual has a financial or personal interest in the outcome of a decision they are making. This could be a situation where an employee is making decisions that could benefit their own financial interests, or where they have a personal relationship with someone involved in the decision-making process. Conflicts of interest can also arise when an individual has access to confidential information that could be used to their advantage. In addition, conflicts of interest can occur when an individual has multiple roles or responsibilities that could lead to conflicting loyalties or obligations.
of the United States from the Paris Agreement
The United States officially withdrew from the Paris Agreement on November 4, 2020. The withdrawal process began in 2017 when President Donald Trump announced his intention to withdraw from the agreement. The withdrawal became official one year after the announcement, as stipulated by the agreement.
Judges for a competition are typically chosen based on their expertise in the subject matter of the competition. Judges should be impartial and unbiased, and should not have any personal or professional relationships with any of the competitors.
Entry restrictions for a competition may include age limits, geographic restrictions, or other criteria that limit who can enter the competition. Post-entry limits on competition may include rules about how many entries each competitor can submit, or how much time they have to complete their entry.
Conduct rules for a competition should be clearly outlined before the start of the event. These rules should cover topics such as appropriate behavior during the event, use of technology, and any other relevant topics that could affect the fairness of the competition.
The use of the internet has become an integral part of our lives. It has changed the way we communicate, shop, and even work. The internet has also opened up a world of opportunities for businesses to reach out to their customers and potential customers. However, it is important to remember that with great power comes great responsibility. Businesses must ensure that they are using the internet responsibly and ethically in order to protect their customers’ data and privacy. By following best practices such as implementing strong security measures, using encryption technology, and adhering to privacy policies, businesses can ensure that they are doing their part to protect their customers’ data and privacy online.
The regulation of lawyers in Canada is a complex and multi-faceted process. It involves both self-regulation by the legal profession, as well as external regulation by governments and courts. The Canadian legal profession has traditionally been self-regulated, with provincial law societies responsible for setting standards of professional conduct and disciplining lawyers who fail to meet those standards. This system of self-regulation has been supplemented over the years by various forms of external regulation, including legislation, court decisions, and other forms of judicial oversight.
In recent decades, there has been an increasing trend towards judicial regulation of lawyers in Canada. This trend can be seen in a number of areas, including the development of rules governing lawyer advertising and fee arrangements; the recognition of certain rights for clients; and the imposition of sanctions on lawyers who breach their professional obligations. In addition, judges have become more involved in overseeing the activities of law societies and ensuring that they are properly enforcing their rules.
The increased role played by judges in regulating Canadian lawyers is part of a broader shift towards greater judicial involvement in many aspects of public life. This shift has been driven by a number of factors, including changes to the legal landscape brought about by globalization; advances in technology; and an increased focus on accountability and transparency within government institutions. As such, it is likely that judicial regulation will continue to play an important role in regulating Canadian lawyers into the future.
The first part of this article examines the history of lawyer regulation in Canada, tracing the evolution from a system of self-regulation to one that is increasingly characterized by judicial oversight. It begins by discussing the traditional model of self-regulation, which has been in place since Confederation and is based on the premise that lawyers are best suited to regulate their own profession. It then considers how this model has been challenged over time, as courts have become more active in regulating the legal profession. The second part of this article examines the implications of this shift for lawyer regulation in Canada. It argues that judicial oversight has resulted in a regulatory regime that is more attentive to public interests than was previously possible under a system of self-regulation. Finally, it considers some potential reforms that could further enhance public protection while preserving the autonomy of the legal profession.
Second, the article shows that judicial regulation has been a dynamic and evolving process. It has not been static or uniform across all areas of professional regulation. This observation suggests that reform in Canada should be approached with an eye to the particularities of our legal system and the ways in which it has already responded to changing circumstances. Finally, this article provides a useful reminder that the public interest is not always served by external control. In some cases, judicial regulation may have gone too far and undermined important aspects of lawyer autonomy. As we consider how best to regulate lawyers in Canada, we must be mindful of these potential pitfalls.
Finally, the analysis here also suggests that the judiciary is a powerful and effective regulator of lawyers. This is because judges have the authority to impose sanctions on lawyers who violate their ethical obligations, including fines, suspensions, and disbarment. Moreover, judges are able to use their discretion in deciding which sanctions to impose in any given case. This means that judges can tailor their decisions to fit the particular circumstances of each case and ensure that justice is served. In this way, judicial regulation of lawyers can be seen as an important part of ensuring that the legal profession remains accountable to the public interest.
Part III examines the various forms of judicial regulation, including the use of court orders to compel lawyers to comply with professional standards, the imposition of sanctions for misconduct, and the exercise of inherent powers. Part IV then considers how these measures have been used in practice and assesses their effectiveness. Finally, the article concludes by noting that while judicial regulation has had some success in curbing lawyer misconduct, it is ultimately limited by its reliance on self-regulation as a primary means of enforcement.
In addition, courts have increasingly imposed sanctions on lawyers for professional misconduct. This has included the imposition of costs orders, suspension and disbarment. Finally, courts have also been active in developing standards of practice for lawyers through their interpretation of rules and regulations governing the profession.
- A theory and some definitions
As noted above, this article is not only concerned with documenting the various measures taken by courts in recent decades with respect to the lawyer regulation,but also considers the consequences of these measures. In order to set the stage for this critical analysis,this Part introduces the “lawyer-judge bias” theory and discusses how several key concepts-self.Â regulation, judicial regulation, and public interest-are understood and used in the arguments developed in this article.
- Lawyer-judge bias
To the extent that judges have been recognized as regulators of the legal profession, their ability to effectively regulate lawyers has come into question. More specifically,judges,as former lawyers,are often viewed as lacking the distance or motivation to fairly regulate “their own.” The specific term “lawyer-judge bias” is taken from the work of Benjamin Barton who has laid out a detailed case that, in the American context, “lawyer-judges instinctively favor the legal profession in their decisions and actions and that this bias has powerful and far-reaching effects.”3Â In short,he posits,”when given the chance,judges favor the interests of the legal profession over the public.”4Â This bias,according to Barton,is based on the fact that “regardless of political affiliation,judicial philosophy,race, gender or religion, every American judge shares a single characteristic: every American judge is a former lawyer.”5Â Canadian judges,of course, share this same characteristic,which invites an application of this theory to Canada. Although American judges possess different powers in regulating lawyers than do Canadian judges,6Â one can find similar concerns regardingÂ judicial sympathy to the legal profession’s interests expressed in the Canadian context.7
This article explores the applicability of the “lawyer-judge bias” theory to the Canadian context. It is argued that, in Canada, experience has shown that courts willÂ notÂ inevitably favour the interests of the legal profession over those of the public. To the contrary, judges have taken repeated measures that have favoured the public interest at the expense of the legal profession’s self-interest.
The definition of “self-regulation” is neither self-evident nor uncontroversial.8Â This article proceeds by relying on a definition of selfÂ regulation consistent with that provided by Tanina Rostain, who describes self-regulation as “encompass[ing] the authority to delineate a sphere of expertise, establish qualifications for membership, limit competition from non-members, and impose ethical rules of conduct on practitioners.”9Â Drawing from this explanation, self-regulation is defined for the purposes of this article in terms of control over four core regulatory areas: entry, competition, competence, and conduct.
The first of the two interrelated arguments developed in this articleÂ that courts have occupied an increasingly active role as regulators of the legal profession in the past several decades-is rooted in the observation that significant judicial measures have been taken in each of these four core areas. Part III below examines measures taken with respect to postÂ entry competence, while Part IV takes up entry restrictions, post-entry limits on competition, and post-entry conduct rules. The analysis in these parts reveals that, notwithstanding the fact that law societies are still powerful regulators in Canada, their authority is far from exclusive or even dominant in core areas.
- The public interest
Key to the arguments advanced in this article is the concept of the public interest. For the purposes of this article, the premise that judicial regulation has been attentive to the public interest is framed in terms of judicial actions taken to counteract or mitigate abuses associated with selfÂ governing powers. As observed by Michael J. Trebilcock:
- one of the principal social risks involved in delegated forms of regulation is that the profession in question may be tempted to abuse its self-governing powers to engage in anti-social forms of collusion or cartelization, e.g. byÂ restricting entry unnecessarily,Â or byÂ constraining unnecessarily post-entry forms of consumer welfare enhancing behaviourÂ (e.g. advertising, broader utilization of para-professionals), or byÂ insufficiently zealous monitoring of post-entry competenceÂ (as opposed to dishonesty or unethical conduct).10
- To the above list, I would add: adopting conduct rules that unduly favour the commercial interests of the profession. With this list, each of the four core areas of control constitutive of self-regulation may be understood as carrying an attendant risk:
- Entry: Unnecessary entrance restrictions,
- Competence: Insufficiently zealous monitoring of post-entry competence,
- Competition: Unnecessary constraints on post-entry forms of consumer enhancing behaviour, and
- Conduct: Adopting conduct rules that unduly favour the commercial interests of the profession.
- The argument advanced in this article is that judges have come to occupy an important regulatory role by acting to mitigate these risks. In some cases this has involved rejection of the self-interested standards or positions adopted by the legal profession. In other cases, this has involved courts more actively regulating themselves in a certain area.
- The use of this framework to discuss the public interest is not intended to preclude a more expansive and sophisticated definition of this term that would, for example, recognize an inherent value in having members of the public participate in the governance of the legal profession or suggest that acting in the public interestÂ isÂ the legal profession’s self-interest, properly understood. The argument here is consciously modest: in taking actions that counteract identified “anti-social” behaviours or risks associated with a self-regulating legal profession, judges have regulated the legalÂ profession in a manner that has promoted the public interest over interests of the profession, narrowly understood.
- Judicial regulation
As a final introductory matter, the term ‘)udicial regulation” deserves some consideration. The use of this term here is broad and is intended to encompass a wide range of measures taken by courts that have a bearing on the governance of the legal profession and the behaviour of lawyers. Such measures would include not only those traditionally viewed as within the ambit of judicial regulation of lawyers-for example, the court’s exercise of its statutory and inherent jurisdiction over court processes and its administration of civil causes of action-but also judicial interpretation and application of legislation affecting lawyer governance or behaviour. The latter category includes, for example, court decisions involving provincial and territorial legislation delegating governing authority to the law societies as well as legislation of more general application, such as theÂ Canadian Charter ofRights and Freedoms11Â and federal competition law12Â to the legal profession.
- Lawyer-judge bias
- The political background: a series of inquiries
The judicial measures traced in this article begin in the 1970s, a period characterized by intensified public scrutiny of the Canadian legal profession. To be sure, prior to this decade, lawyers in Canada faced (as they continue to face) an “endemic unpopularity” with the public similar to that experienced by their peers in other countries.Â 13Â Canadian lawyers were also, throughout the twentieth century, forced to grapple with a number of governmental challenges to their claims to self-regulation.14Â Although skepticism of the legal profession was nothing new, the 1970s brought sharpened focus to the principle of public accountability.15Â This focus on public accountability, with the concept of protecting and furtheringÂ the public interest at its centre, was ultimately reflected in the judicial regulatoryÂ measures traced in this article, beginning in the late 1970s.
The public scrutiny faced by Canadian lawyers in the 1970s finds its most tangible reflection in a number of public inquiries into the professions. Two government commissions in the late 1960s were particularly influential. First, in Quebec, the 1970 Quebec Report of the Commission oflnquiryÂ on Health and Social Welfare Part V (the “Castonguay-Nepveu Report”)16Â led to the adoption of a newÂ ProfessionalÂ Code17Â in 1973 that “effected a complete reorganization in the regulation of professions”18Â and placed the protection of the public as the prime regulatoryÂ objective.19Â Second, in Ontario, the first report of the province’s Royal Commission InquiryÂ into Civil Rights20Â inspired, “for the first time in a half-centuryÂ … systematic scrutiny” of the legal profession in Ontario.21Â The McRuer Report’s attitude toward self-government was generally skeptical22Â but ultimately did not call for the abolition of self-regulation. Instead, the report modestly recommended that “[t]he power of self-government should not be extended beyond the present limitations, unless it is clearly established that the public interest demands it and that the public interest could not be adequately safeguarded by other means.”23Â On the heels of the McRuer Report, at least one commentator felt that the legal profession was particularly “vulnerable to…attack” and that it fell to the courts to remediate the narrow scope of civil liability faced by lawyers in relation to their conduct in order to stave off closer governmental regulation of the legal profession.24Â As will be explored below, the courts did ultimately take up this task in the late 1970s. The first response to the McRuer Report, however, came in the form of legislative change. A newÂ Law Society Act25Â was passed in 1970, which introduced several measures explicitly focused on increasing the public accountability of the Law Society and protecting the public interest.26
Although the governmental commissions in both Ontario and Quebec led to legislative reforms, the legal profession in each of the two provinces maintained a considerable amount of autonomy.27Â This is, perhaps, unsurprising given that the reforms instituted in Quebec and Ontario came after intensive periods of consultation with, and resistance by, the legal profession28Â and that the final legislative product in each province represented a compromise. As the 1970s progressed, additional legislative committees were set up to examine the professions in Manitoba and Alberta,29Â and further review took place in Ontario in 1977.30Â Another flurry of governmental reviews of the professions came in the late 1980s and early 1990s.31Â In 2007, the federal government stepped in to make its mark as the Competition Bureau released a study into the self-regulatedÂ professions in which a number of specific recommendations were made regarding the governance of the legal profession.32
Notwithstanding being subject to repeated reviews for several decades, beginning in the 1970s, Canadian lawyers emerged largely unscathed and provincial law societies retained significant powers of self-regulation.33Â One important effect of this sustained scrutiny, however, was to raise the profile and solidly entrench public interest as the dominant norm against which lawyer regulation was to be measured.34Â Although, as will be discussed below, the legal profession itself took steps to check its selfÂ interest when faced with this scrutiny, its posture was considerably more defensive and reactive when compared with judicial measures taken during this same time period. Parts III and IV will trace how judges expanded the scope and depth of their reach in lawyer regulation, ousted self-interested standards adopted by the legal profession itself, and were an important part of the background conditions that pushed the legal profession to undertake its own reforms in some instances.
- Regulation of the practice of law: a new era of negligence
This Part examines developments in the courts’ regulation of the practice of law and, in particular, looks at reforms to the civil liability of lawyers in negligence. As a result of the courts’ rejection of exceptional treatment for lawyers in this area and their creation of new sources of liability for lawyers rooted in negligence, the competence of lawyers is now subject to more rigourous scrutiny and examined across a greater number of contexts than in the pre-l970s era. In undertaking these measures, the courts have, therefore, both asserted themselves in a key regulatory area (post-entry competence) and, in doing so, have mitigated a key risk associated with profession self-regulation (insufficiently zealous monitoring of post-entry competence). The result has been a regulatory regime more attentive to the public interest in this area of regulatory concern.
- Rejecting exceptions
- Eliminating immunity
In the late 1970s, Canadian courts rejected “the most dramatic example”35Â ofÂ exceptional treatment for lawyers in negligence law in confirmingÂ thatthe English doctrineÂ ofÂ advocates’ immunity had no place in Canadian law. Although, in 2000, the HouseÂ ofÂ Lords ultimately abolished the operation ofÂ this doctrine, it was considered well-settled law at the time in England and Wales that barristers were immune from suit in relation to the conduct and managementÂ ofÂ a case in court.36Â Translated into practice, the effect of this immunity was significant: it meant, for example, that barristers would not be subject to an action “for calling or not calling a particular witness, or for putting or not putting a particular question, or for honestly taking a viewÂ ofÂ the case which may turn out to be quite erroneous.”37Â Despite the harsh effectsÂ ofÂ this immunity for clients who wished to seek relief for negligent conductÂ ofÂ their lawyers in court, it was not idiosyncraticÂ toÂ England and Wales. New Zealand, for example, recognized this doctrine untilÂ 2006.38Â Further, amidst controversy, the immunity has been retained to date in Australia.39
Traditionally, the English courts had justified the immunity on the basis that it would be unfair to allow clients to sue barristers for negligence when the barristers were unable to sue clients for their fees. Given that Canadian lawyers could sue for their fees, early Canadian precedent held that the English courts’ rationale for the immunity (and therefore the immunity itself) could not be imported to the Canadian context.40Â This precedent, however, came under question after the 1967 English decisionÂ RondelÂ v. Worsley41Â where the HouseÂ ofÂ Lords shifted the justification for the immunity away from the treatmentÂ ofÂ fees and, instead, rooted the immunity in public policy grounds. The new public policy groundsÂ given-forÂ example, claims that lawyers needed to be protected from the threatÂ ofÂ lawsuits in order to be able to zealously represent their clients orÂ that negligence actions against barristers would inevitably require retrying the original actions and potentially create inconsistent results-were not obviously inapplicable in the Canadian context.42
Following the decision inÂ Randel,Â several Canadian cases considered the effect ofthe House ofLords’ new public policy rationale and left open the possibility that some form of immunity from negligence existed forÂ Canadian lawyers.43Â However, in 1979, Krever J ofthe Ontario High Court of Justice clarified inÂ Demarco v. UngaroÂ that the English immunity had no place in Canadian law.44Â In support ofthis conclusion, Krever J cited the public interest, albeit in a negative fashion, stating that “the public interest…doesÂ notÂ require that our Courts recognize an immunity.”45Â To be sure, Krever J’s choice of language was influenced by the repeated reference of the Law Lords inÂ Randel v. WorsleyÂ to “public interest” in their defence of the immunity. It is also apparent, however, that Krever J took seriously the perspective of the Canadian public, writing: “I do not believe that enlightened, non-legally trained members of the community would agree with me ifl were to hold that the public interest requires that litigation lawyers be immune from actions for negligence.”46
It is now well settled across Canada that the doctrine of advocates’ immunity does not insulate lawyers from negligence actions. While theÂ result inÂ DemarcoÂ is likely intuitive to most Canadian lawyers today, it was more controversial at the time. As the Assistant Secretary of The Law Society of Upper Canada observed in a case comment following the decision: “o many counsel Mr. Justice Krever’s decision is tantamount to the opening of Pandora’s box.”47Â Skeptics could also be found in British Columbia as late as 1985, when an article appeared in a legal trade journal advocating that the immunity be retained in that province notwithstanding the decision inÂ Demarco.48
The decision inÂ DemarcoÂ was a forceful rejection of the proposition that exceptional treatment of the legal profession in the area of negligence was in the public interest. As noted by one academic at the time, however: “Although theÂ DemarcoÂ decision may have opened the door to actions by a client against an advocate for negligent conduct of litigation…once over the threshold the plaintiff may find his passage through the corridors of the halls of justice severely impeded.”49Â Eventually, however, the courts began to chip away at these additional impediments to lawyer liability as well.
- Securing concurrent liability
A second area of exceptionalism was addressed in the 1980s when the courts clarified that lawyers could have concurrent liability in contract and negligence. Notwithstanding the reference inÂ DemarcoÂ to immunity (or lack thereof) of lawyers from actions inÂ negligence,Â there was considerable controversy at the time as to whether lawyers owed any duty of care to clients independent of implied duties of care that could be said to exist under lawyer-client contracts. Historically, English “authorities commonly held that it did not manner how an action against a solicitor was framed -in contract or in tort.”50Â In the case ofÂ Groom v. Crocker,51Â however, the English Court of Appeal held that “he relationship [between] solicitor and client is a contractual one” and that “[i]t was by virtue of that relationship that the duty [to the client] arose, and it had no existence apart from that relationship.”52Â
FollowingÂ Groom v. Crocker,Â there was “considerable authority” in Canada in support of the proposition that liability to a client existed in contract only, although the matter remained unsettled due to a number of conflicting judgments.53Â At stake in this distinction was more than semantics: “mportant legal consequences have turned on the differences in the rules applicable to contractual and tortious liability…[most particularly, in the areas of] limitation of actions, measure of damages and apportionment of liability.”54
The possibility of concurrent liability in contract and tort was ultimately resolved by the Supreme Court of Canada in the 1986 decision ofÂ Central Trust Co. v. Rafuse.55Â Writing for the court, LeDain J concluded that concurrent liability in tort and in contract was available in cases of lawyer negligence, noting that “here is no sound reason of principle or policy why the solicitor should be in a different position in respect of concurrent liability from that of other professionals.”56Â Once again, the concept of exceptional treatment for legal professionals was firmly rejected.
- Standard of care
Judicial scrutiny of lawyer liability in negligence did not end, however, with the rejection of advocates’ immunity and the acceptance of concurrent liability. The standard of care applicable to lawyer conduct was the next target. At a general level, the standard of care imposed on Canadian lawyers has long been articulated in the same terms: a lawyer must bring reasonable care, skill, and knowledge to the professional service that he or she has undertaken.57Â What this standard actually requires and the manner in which it has been framed, however, has changed significantly over the past few decades.
In several different ways, the courts historically articulated the standard of care applicable to lawyers in a manner that suggested that lawyers were subject to less rigourous scrutiny. For example, throughout most of the twentieth century, Canadian courts regularly cited a standard ofÂ crassaÂ negligentiaÂ or “gross negligence” in addressing lawyer negligence.58Â The reference toÂ crassa negligentiaÂ created some tension in light of the broader recognized standard of requiring that lawyers use reasonable care, skill, and knowledge. The broader standard suggested that mere negligence was sufficient to ground liability, whileÂ crassa negligentiaÂ suggested something more was required in the form of gross negligence.
The 1979Â DemarcoÂ decision, discussed above, served to introduce further confusion. In the course of his reasons rejecting advocates’ immunity, Justice Krever also commented that he found “it difficult to believe that a decision made by a lawyer in the conduct of a case will be held to be negligence as opposed to a mere error of judgment. But there may be cases in which the error is so egregious that a Court will conclude that it is negligence.”59Â Picking up on this language, courts in a number of different provinces began to apply an “egregious error” standard to actions in negligence brought against lawyers.60Â As with the use of theÂ crassa negligentiaÂ or gross negligence standard, the language of egregious error “suggests that lawyers enjoy a more forgiving standard of care than that which is expected of other professionals.”61Â As observed by one commentator, in practice, the use of an “egregious error” standard effectively meant that lawyers continued to enjoy aÂ de factoÂ immunity from liability in negligence in connection with their conduct of a case inÂ court.62Â Evidence that lawyers themselves believed that this was a lower standard can be found in a case heard subsequent to the egregious error test being rejected by the courts, wherein counsel for the defendant lawyer submitted (unsuccessfully) that the egregious error test should nonetheless be applied in order to avoid an improper retroactive application of the law.63
In the early 2000s, courts ultimately clarified that lawyers are not subject to any special treatment when it comes to the standard of care. Two provincial appellate court decisions, in particular, stand out in firmly rejecting the egregious error standard. In 2003, the Saskatchewan Court of Appeal reviewed the comments inÂ DemarcoÂ and noted that “o find a different standard of care for lawyers performing barristers’ work than for those doing solicitors’ work is really a means of introducing barristers’ immunity in a different form, and should probably be rejected for the same reasons.”64Â Shortly thereafter, the Ontario Court of Appeal also rejected the concept of applying an exceptional standard of care to the conduct of lawyers.65Â Writing for the Court, Doherty JA stated: “The decisions of other professionals are routinely subjected to a reasonableness standard in negligence lawsuits. I see no reason why lawyers should not be subjected to the same standard.”66
- Eliminating immunity
- Opening new frontiers of liability
- Liability to non-clients
In addition to shutting down exceptional treatment for Canadian lawyers in negligence law, the courts also expanded lawyers’ liability in negligence in several respects. Liability to non-clients is one important area in which this occurred. Historically, liability in negligence of Canadian lawyers to non-clients was “extremely limited.”67Â Beginning in the late 1970s, however, the courts began to expand lawyers’ obligations to third parties in modest but significant ways.68Â The two major areas of liability to third parties that emerged were: (1) where the third party was able to establish that they reasonably relied on the lawyer to protect their interests,69Â and (2) where the third party was an intended (but failed) beneficiary of aÂ will where the lawyer has been retained by the testator.70Â The first area of expanded liability followed logically from the general expansion of Canadian negligence law to permit recovery of pure economic loss in cases of negligent misrepresentation, following the House of Lord’s decision inÂ Hedley Byrne & Co. v. Heller & Partners.71Â The second area of liability-liability of a lawyer in negligence to an intended beneficiary of a will-was more exceptional in that the courts found that lawyers could be liable to a non-client in the absence of any contractual relationship or other reliance.72
In a 2000 decision, for example, the Saskatchewan Court of Appeal drew from English authority in noting that one of the “reasons ofjustice” for holding lawyers liable in cases of “disappointed beneficiaries” was that “the public relies on lawyers to prepare effective wills…[and] o deny an effective remedy amounts to a refusal to acknowledge a lawyer’s professional role in the community.”73Â Courts in other provinces have now approvingly cited the rationales for the duty as provided by the Saskatchewan Court of Appeal.74Â In expanding the liability of lawyers in negligence to non-clients, albeit in limited circumstances, the courts have again further extended their reach in the area of post-entry competence and have done so in a manner that has favoured the public interest at the expense of the interests of the profession.
- Personal responsibility for costs75
Lawyers also now face expanded liability in terms of their potential personal responsibility for costs of litigation. Although Canadian courts have long had the power to order a lawyer to personally pay the costs of litigation in cases where the lawyer has improperly conducted himself or herself, the threshold for making such orders has been lowered over the past several decades. Historically, Canadian courts relied on English authority to hold that the lawyers’ conduct must amount to somethingÂ akin to gross negligence before liability for costs would be imposed.76Â Fallowing the 1993 Supreme Court of Canada decision inÂ Young v. Young,77Â the standard used morphed somewhat into focussing on the issue of “bad faith” and took on a decidedly subjective hue.78Â These decisions, however, were rooted in the court’s inherent jurisdiction to make such orders. As the years progressed, courts moved to apply objective negligence-based standards under provincial statutory provisions providing for costs against lawyers personally rather than the court’s inherent jurisdiction. Although costs orders against lawyers personally remain the exception rather than the rule, lawyers now face an increased scope of liability under objective negligence-based standards.
In Ontario, for example, Rule 57.07 was introduced in 1985 and empowered courts to order a lawyer to personally pay the costs of any party where the lawyer “has caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default.”79Â At the time of its introduction, Rule 57.07 was “entirely new”80Â and membersÂ of the profession expressed concern about its potential effects.81Â Within weeks of Rule 57.07 coming into force, one Ontario lawyer brought an application for a declaration that the rule was of no force and effect on several grounds, including alleging that the rule unduly infringed the independence of the bar and violated certain constitutional rights.82Â The application ultimately made its way to the Supreme Court of Canada, which held that the lawyer was not entitled to proceed with the application “as presently constituted” given his failure to present an adequate factual foundation.83Â The hostility to Rule 57.07 among the legal profession is reflected in the Supreme Court’s decision: Sopinka J noted in the opening paragraph of his reasons that Rule 57.07 was “known colloquially among the Ontario Bar as the ‘Torquemada Rule’“ referencing “the first grand inquisitor of the Spanish Inquisition whose name has become synonymous with cruelty.”84
The courts were initially divided as to whether more than “mere negligence” was required to make an order under 57.07. This issue was ultimately resolved by Granger J inÂ Marchand (Litigation Guardian of)Â v.Â Public General Hospital Society of Chatham85Â who concluded that the “ordinary meaning of the words contained therein can be applied to determine if an order for costs should be made against the solicitor personally.”86Â Justice Granger held that lawyers could be responsible for costs in cases of “mere negligence” as well as in circumstances that “fall short of negligence” such as cases where “bad judgment” not amounting to negligence causes undue delay in a trial.87
Although inÂ MarchandÂ the confirmation of a lower, negligence-based standard for awarding costs against lawyers personally did not translate into a cost award against the lawyer, a number of subsequent cases have relied on an ordinary standard of negligence in awarding such costs.88Â Courts in other provincial jurisdictions have also adopted an approach consistent with that taken by Ontario courts. The British Columbia Court of Appeal, for example, recently confirmed that “mere delay and mere neglect may, in some circumstances, be sufficient for [an order of costs] against a lawyer” personally.89Â Although orders of costs against lawyers personally remain rare in Canada, this is yet another area wherein lawyers face expanded liability before the courts following the triumph of an objective negligence-based test over a subjective test rooted in bad faith.
- Liability to non-clients
- Judges and post-entry competence
As a result of the developments canvassed above, Canadian lawyers today face a materially increased scope of liability in negligence compared to what they encountered in the early 1970s. Courts have firmly rejected exceptional treatment for lawyers in negligence by clarifying:
- that advocates’ immunity does not apply in Canada,
- that lawyers are concurrently liable in contract and tort, and
- that no special standard of “gross negligence” or “egregious error” applies to the legal profession.
- Courts have also opened up new frontiers of liability in the areas of duties owed to third parties and costs orders against lawyers personally. One clear consequence of these developments is that there is now more rigourous monitoring of the post-entry competence of lawyers and increased exposure to civil penalties for incompetence.
- There are possible objections that should be considered, however, to the characterization of these developments as aggressive judicial regulation of the legal profession. First, it might be observed that the legal profession itself was first to wade into the area of post-entry competence in the 1970s and, therefore, suggested that the judicial measures takenÂ were responsive to the profession’s own regulatory efforts rather than examples of aggressive judicial regulation in contradistinction to the profession’s defensive self-regulation.90Â Although, today, one might be inclined to think of a self-imposed rule relating to competence as a longÂ standing component of a code of professional conduct for lawyers, this is not the case. In fact, “competence was essentially not on [lawyers’] agenda at all until the 1970s.”91Â A requirement of competence was first introduced in 1974, when the Canadian Bar Association adopted a newÂ Code ofProfessional ConductÂ to replace the vague and largely hortatoryÂ Canons ofLegal EthicsÂ adopted in 1920.92Â Prior to the 1974Â CEA CodeÂ “incompetence was not explicitly stigmatized as unacceptable behavior…. [a]s a consequence, almost no one in Canada ha[d] ever been disbarred for incompetence except lawyers who have suffered a virtually total collapse of personality and have become unable to carry on their practice.”93
- Despite the profession’s claim to first efforts in the area of postÂ entry competence, there is a strong argument to be made that the judicial measures described above were, in fact, contradictory rather than complementary to the legal profession’s efforts and, moreover, that judicial efforts bore a closer connection to the public interest.As Harry Arthurs has pointed out, the interest of law societies in the issue of competence can be understood in relation to the introduction of mandatory malpractice insurance schemes in the early 1970s. One major effect of such schemes was that the law societies “for the first time acquired a direct stake in the costs and consequences of incompetence” and, as a consequence, had “strong motivation[s] to contain rising costs…by attempting to reduce theÂ incidence of claims.”94Â In contrast, judicial efforts to reject exceptional treatment and expand lawyers’ liability in relation to civil negligence claims clearly risk having the opposite effect of increasing the incidence of claims.
- In short, while the profession’s actions can be read-at least in part-as being undertaken with the self-interested motivation of keeping insurance costs down, the actions of courts in the area of post-entry competence are arguably more directly connected to the public’s interest in receiving competent legal services. It should also be pointed out that, although lawyer competence has now been within the regulatory ambit of law societies for several decades, law societies still rarely discipline lawyers for incompetence.95Â Given this reality, judicial expansion of malpractice liability may be appropriately viewed as a more aggressive move to counteract the self-regulatory risk that post-entry competence will be insufficiently monitored by the profession’s own efforts.
- Second, it might be pointed out that-notwithstanding the judiciary’s activity in the area of negligence-the courts have shown significant deference in relation to competence when it comes to law societies’ control in the area of discipline. Take, for example, the Supreme Court of Canada’s decision inÂ Pearlman v. Manitoba Law Society Judicial Committee96Â where Iacobucci J stated plainly that “[b]enchers are in the best position to determine issues of misconduct and incompetence.”97Â InÂ Pearlman,Â Iacobucci J also affirmed the self-governing status of the legal profession and characterized “peer review” as an essential feature of effective self-govemance.98Â Similar sentiments were expressed by the Supreme Court of Canada years later inÂ Law Society ofNew Brunswick v. Ryan,99Â where the court confirmed that a high degree ofdeference should be accorded to the province’s discipline committee and commented that “he Law Society is clearly intended to be the primary body that articulates and enforces professional standards among its members.”100Â Relying onÂ these authorities and others, Canadian courts are reluctant to interfere with decisions oflaw society discipline committees.
- The object of the argument here, however, is not to contend that courts have come to exclusively govern the area ofpost-entry competence, but rather that they have expanded their reach in this area in recent decades and have done so with the public interest in mind. Moreover, it should be noted that-notwithstanding the strong comments inÂ PearlmanÂ andÂ Ryan-thereÂ are a number ofsignificant ways in which courts have come to intrude into the law society’s disciplinary sphere of authority. First, and most obviously, despite endorsing a deferential standard ofreview, courts do judicially review the discipline decisions oflaw societies and, on occasion, overturn them. Second, the courts have also shown a willingness to review the actions of law societies at an institutional level and impose civil liability where such disciplinary measures do not adequately attend to the public interest. In 2004, for example, the Supreme Court of Canada “sent a chill through the corridors of the provincial law societies”101Â after releasing its decision inÂ Finney v. Barreau du Quebec,102Â in which it held that the Barreau du Quebec was liable to pay damages to a member of the public who had made a complaint regarding a Quebec lawyer. After confirming that self-governing powers held by the Quebec legal profession were not accorded for “private purposes” but rather delegated for the public’s interest, the Court held that “he virtually complete absence ofthe diligence called for in the situation amounted to a fault consisting of gross carelessness and serious negligence.”103Â Although the Court’s imposition of a standard of “gross carelessness” was far from a radical interference in the Barreau’s authority to govern,104Â the judiciary’s attention to the public interest in the situation can be contrasted to “the highly adversarial and protectionist stance of the Federation of Law Societies which, it seems, was intervening on behalf of the law societies’ interest rather than the public interest.”105
- Third, the courts have rejected claims by the legal profession for exclusive authority over the disciplining of lawyers and affirmed the authority of other external regulators to also engage in disciplinary activity. InÂ Wilder v. Ontario (Securities Commission),106Â for example, the Ontario Court of Appeal confirmed that the Ontario Securities Commission had the authority to reprimand lawyers who appear before it and rejected the submissions ofthe Law Society of Upper Canada that “it had exclusive and exhaustive powers over the regulation of professional conduct of lawyers.”Â 107
- In conclusion, the primary mechanism through which judges regulate the post-entry competence oflawyers is by administering civil actions in negligence. In this area, courts have firmly rejected lawyer exceptionality and expanded the scope ofliability through a series ofdecisions beginning in the late 1970s. Although law societies retain primary authority over discipline proceedings-which also operate to regulate post-entry competence-judges have taken modest measures that have intruded on this authority as well. Such modest measures include imposing liability on law societies in limited circumstances for failing to adequately meet their mandate ofregulating in the public interest and recognizing the authority of other institutions to concurrently discipline lawyers. Together, these developments reflect a trend of aggressive judicial regulation with the result that there is now more rigourous, public interest-oriented and broadÂ reaching scrutiny of lawyer competence than in the pre-1970s era.
- Rejecting exceptions
- Regulating the business of law: entry, competition, conduct
In addition to making their mark regulating the practice of law and, in particular, post-entry competence, the courts have also taken a number of significant measures in the last several decades with respect to regulating theÂ businessÂ oflaw. This Part examines judicial measures in three areas: entry restrictions, post-entry limits on competition, and post-entry conduct rules.
- Entry restrictions
As noted in Part II, one potential abuse of self-governing powers is the imposition of unnecessary entry restrictions. Rules restricting entry to a profession are, of course, not inherently problematic. Requiring a certain level or type of education before being allowed to practice law,Â for example, is one way to ensure that those providing legal services to the public have the appropriate training to do so. Entry restrictions can, however, also operate to more nefarious discriminatory and antiÂ competitive ends. Indeed, the two types of entry restrictions that are the subject ofthis section-citizenship requirements and constraints on interÂ provincial firms-were found by courts to be, respectively, discriminatory and motivated by concerns to limit competition. Over the legal profession’s objections, courts declared the restrictions constitutionally invalid and stepped into a core regulatory area with considerable force and impact.
In general, provincial and territorial law societies regulate admission to the practice oflaw by prescribing entrance requirements and evaluating whether applicants have met these requirements. The courts have no direct authority over this regulatory area, although they are empowered to judicially review the validity ofdecisions made by the law societies in individual cases.108Â With the introduction oftheÂ Charter ofRights and FreedomsÂ in 1982, however, the courts were given a new tool to directly review the validity ofadmission requirements. Two significant decisions by the Supreme Court of Canada shortly after the introduction of theCharter-Andrews v. Law Society of British Columbia109Â andÂ Black v. Law Society of Alberta110-resultedÂ in the invalidation of certain entry restrictions. These decisions, together with various legislative and policy reforms that followed, ushered in a significantly liberalized regime with respect to the admission of foreign professionals to practice and the interprovincial mobility of lawyers.
- Citizenship and residency requirements
InÂ Andrews,Â the Supreme Court of Canada struck down the requirement that applicants to British Columbia’s legal profession be Canadian citizens. At the time, “Canadian citizenship was virtually a universal requirement for admittance to any ofthe provincial law societies”m and law societies were strong advocates ofthe limiting entry to the profession to CanadianÂ citizens.112Â On several occasions previous toÂ Andrews,Â the courts had considered citizenship requirements for admission to law practice and, despite raising questions as to the justifiability of such requirements, had declined to find them invalid.113Â These cases were heard before the equality provisions of theÂ CharterÂ were in force, however, they ultimately formed the basis for the Supreme Court’s finding inÂ AndrewsÂ that the British Columbia citizenship requirement was invalid.114
InÂ Andrews,Â the Law Society of British Columbia-which was a party to the action-had vigorously defended the citizenship requirement, arguing,Â inter alia,Â that the “vital role” role lawyers play in governmental processes and in the administration of justice justified the rule.115Â In the background, however, lurked less lofty motivations. When viewed in the context of the long history of other nationality requirements imposed in Canada in relation to voting, land-holding, and employment, it is difficult to deny that xenophobia and anti-immigrant sentiments played a role in the origination of citizenship requirements for legal professionals.116Â The citizenship requirements may also be viewed as a protectionist measure from a competition standpoint. Speaking about the citizenship requirement in Manitoba in 1977, Jack London observed that it could “be seen as an attempt to limit the numbers of persons entering the legal profession and hence to provide a kind of import restriction in the numbers practicing law in the community. The monopoly is maintained in many ways, this being one.”117Â In rejecting the citizenship requirement inÂ Andrews,Â the Supreme Court of Canada overruled the Canadian legal profession’s self-serving view of who should be allowed to be a lawyer.
Post-Andrews,Â a number of provinces maintained a requirement that an applicant for admission to practice be either a Canadian citizenÂ orÂ a permanent resident.118Â Such requirements, however, came under attackÂ with the release of the federal Competition Bureau’s 2007 report on theÂ self-regulating professions.119Â The report recommended that the residency and citizenship requirements imposed in certain provinces be eliminated, observing that, “[f]rom a competition standpoint, such restrictions limit the supply of lawyers by imposing an additional requirement that lawyers must meet before becoming members of a law society that has such aÂ restriction.”120Â With this additional push from the Competition Bureau, a number of law societies have more recently removed residency andÂ citizenship requirements previously in place.121
- Inter-provincial practice of law
Shortly afterÂ Andrews,Â the Supreme Court of Canada waded into another aspect of the legal profession’s control over entry. InÂ BlackÂ v.Â Law Society of Alberta,122Â the Court declared invalid two rules enacted by the Law Society of Alberta that aimed to restrict the emergence of inter-provincial law firms in the province.123Â At the time, inter-provincial firms were virtually unknown in Canada124Â and the provinces had differing opinions regarding their desirability.125Â The specific rules enacted in Alberta were a direct response to efforts by the Toronto law firm McCarthy and McCarthy to establish an inter-provincial law firm with a branch in Alberta. Before the Supreme Court of Canada, the Law Society of Alberta attempted toÂ justify the rules by arguing that they were necessary to protect the quality of legal services in the province.126Â As the trial judge concluded, however, the worry that inter-provincial firms would increase competition and take work away from Alberta lawyers formed at least part of the motivationÂ for the rules.127Â Writing for the majority of the Supreme Court of Canada, La Forest J found that the rules violated mobility rights guaranteed by theÂ CharterÂ and rejected the Law Society’s contention “that legal services delivered to the public of Alberta would be endangered by interprovincial law firms.”128
Beginning in the late 1990s, the legal profession also began to address the issue of inter-provincial mobility through a series of mobility agreements entered into between provincial and territorial law societies.129Â Included among these measures is theÂ National Mobility Agreement,Â described on the Federation of Canadian Law Societies, website as “the blueprint for the mobility regime…[that] facilitates temporary and permanent mobility of lawyers between all common law provinces in Canada.”130Â TheÂ National Mobility AgreementÂ has eased the requirements for permanently transferring between jurisdictions and also addresses temporary mobility by allowing for lawyers to practice in other signatory jurisdictions for up to 100 days a year without having to obtain a permit (subject to certain restrictions).131
The measures adopted by the legal profession to facilitate the movement of legal professionals across provinces and those taken to ease citizenship and residency requirements demonstrate the willingness of Canadian lawyers to evolve under criticism. It bears highlighting, however, that these measures only emerged after an initial period of resistance and judicial decisions made over the forceful objections of provincial law societies. Viewing these reforms in their historical context helps to highlight the role that the judiciary has played in both changing the rules of the game-for example, in eliminating bars on non-citizens inÂ AndrewsÂ and inter-provincial law firms inÂ Black-andÂ in setting the stage to prompt the legal profession to pursue their own reforms.
- Citizenship and residency requirements
- Post-entry limits on competition
Examples of aggressive judicial regulation can also be found in the area of post-entry limits on competition. This section examines judicial measuresÂ taken with respect to advertising, unauthorized practice, and fees. Once again, measures by the courts may be seen as resulting in a regulatory regime more attentive to the public interest. In this area, further judicial rejection of self-serving rules and positions adopted by law societies can be observed. In several important respects, decisions by the courts have also prompted and enabled further reforms.
Historically, the Canadian legal profession faced significant, self-imposed restrictions in the area of advertising: close to a total ban was in place.132Â Officially, this was justified as a matter of maintaining an appropriate level of professionalism; the advertising of services was said to “lower the tone of the lawyer’s high calling.”133Â Such restrictions, however, also served to advance the economic interests of lawyers through restricting price competition.134Â For example, a study commissioned by the Competition Bureau concluded that advertising restrictions imposed upon lawyers cost Canadian consumers over $30,000,000 in 1970 alone.135
Although the legal profession had started to take small steps to liberalize rules governing advertising in the late 1970s following legislative amendments that brought legal services under the ambit ofÂ federal competition law,136Â significant changes only began to take place in the mid-l980s after a series of court challenges. As was the case with citizenship requirements, the courts had demonstrated some initial hesitancy to intervene in this area before the introduction of theÂ Charter.Â 137Â Moreover, even after theÂ Charter,Â it was not initially clear if and how the newÂ CharterÂ right to freedom of expression would apply to commercial speech and, in several early cases, lower courts were reluctant to find that law society restrictions on lawyer advertising were unconstitutional.138Â Increased judicial attention in addition to continuing interest shown by government regulators, however, encouraged further liberalization on the partofthelawsocietiesinthe l980s.139Â In 1990, in Rocket v. Royal College of Dental Surgeons of Ontario,Â the Supreme Court of Canada ultimately affirmed that theÂ Charter’sÂ freedom of expression protections applied to professional advertising.140Â This ruling made it clear that the legal profession’s rules on advertising would not be able to escape constitutional scrutiny.
More than a decade later, with the release of its 2007 report on the self-regulated professions, the Competition Bureau renewed pressure on the legal profession to further relax rules with respect to advertising. In reviewing the issue of lawyer advertising, the Bureau explicitly rejected the submission of the Federation of Law Societies of Canada that the regulations in place were necessary “to ‘protect the public interest and confidence in the legal system'”Â and took the position that “the restrictions currently in place on advertising go outside of what is necessary to guarantee this, since the public needs only to be protected against advertising that isÂ false or misleading.”141Â Following the release of the Bureau’s report, law societies continued their reforms of advertising rules.142
- Unauthorized practice
Having individuals go through a licensing process before practicing law and monitoring their activities thereafter is a means of protecting the public from incompetent and unscrupulous practitioners. As with other areas of professional control, however, the legal profession’s interest in preventing unauthorized practice has also been influenced by a desire to limit competition. In carving out a set of certain activities for sale by lawyers only, the legal profession protects not only the public but also its monopoly over legal services.
Over the last several decades, the most prominent issue related to the unauthorized practice of law in Canada has been the issue of paralegals providing legal services to the public. Paralegal regulation was thrust into the spotlight in Ontario in 1987 with the Court of Appeal’s decision inÂ R v. Lawrie and Pointts,Â 143Â which involved an appeal of a private prosecution initiated by the Law Society of Upper Canada against a retired police officer who had set up a company to represent persons charged with traffic offences. In the course of concluding that the applicable legislation did not prohibit the practice, Blair J, who wrote for the court, stated: “t has been observed many times that the prohibition against the unauthorized practice of law is not merely to protect qualified lawyers from infringement of their right to practise their profession. Its primary purpose is to protect the public.”144Â This was not the result that the Law Society had hoped for. Just prior to the decision inÂ Pointts,Â the Treasurer of the Law Society of Upper Canada “promised his colleagues that the law society would ‘prosecute the hell’ out of independent paralegals.”145Â After the decision, the Law Society’s response was more moderate, but still chilly, deciding “that although it had to accept the existence of independent paralegal services, it would take no part in their regulation and would continue to oppose their expansion.”146Â Following her study of paralegals several years later, PaulaÂ Pevato observed that there was “substantial evidence…suggest that the legal profession’s hostility toward paralegals is motivated, to a large degree, by a self-serving desire to maintain a monopoly over the delivery of legal services to the public.”147
Although the Ontario government commissioned a report and drafted legislation to address the status of paralegals, no legislative reform occurred until after the Ontario Court of Appeal raised the matter again in 1999 and explicitly chastised the government for failing to take any action to regulate paralegals.148Â Further study followed which ultimately led to legislation, effective 1 May 2007, giving the Law Society of Upper Canada the authority to regulate paralegals.149
The issue of non-lawyers providing legal services has also garnered attention at the federal level in recent years in the immigration context. InÂ Law Society (British Columbia) v. Mangat,150Â the Law Society of British Columbia sought to enjoin immigration consultants from acting in relation to immigration proceedings on the basis that this was the unauthorized practice of law. The Supreme Court of Canada rejected the Law Society’s application, finding, among other things, that federal legislation permitting this practice trumped any provincial legislation to the contrary. FollowingÂ Mangat,Â the federal government enacted regulations and designated a private corporation to govern immigration consultants. The Law Society of Upper Canada soon challenged these developments on a number of grounds, including that the regulations violated the rule of law because they interfered with the independence of the bar and exceeded the government’s authority.151Â The Federal Court dismissed the application and the dismissal was subsequently upheld on appeal.152
In the cases of Ontario paralegals and federal immigration consultants, the courts opened up the practice of law to non-lawyers in the face of strenuous objection by law societies. In both cases, this set the stage for legislative reform that further entrenched and legitimized non-lawyers providing services to the public that lawyers had wanted to reserveÂ for themselves. Although the legal profession eventually took its own measures-take, for example, the Law Society of Upper Canada’s ultimate embrace of regulating paralegals-this only came after courts and governments already took forceful steps in favour of liberalizing the market for legal services.
In addition to being involved in decisions about who may practice law and how they may promote their practice, courts have also been a powerful force in regulating how much lawyers may charge for their services. Due to various imperfections in the market for legal services-including, for example, informational asymmetry and the monopoly that lawyers exercise over the provision of legal services-the risk for price inflation and escalation is considered to be high when it comes to lawyers as a collective professional group.153Â One check on this risk has been the longÂ recognized inherent jurisdiction of Canadian courts to supervise the fees that lawyers charge to clients.154Â In practice, however, the use of this inherent judicial power has been generally supplanted by formal statutory processes that allow clients to have their lawyers’ accounts reviewed by non-judicial assessment officers or court registrars.155
In addition to hearing appeals of non-judicial reviews of costs, courts have also taken an active role in rejecting anti-competitive fee practices of lawyers. Set fee schedules, in particular, have been a particular target. Despite lacking any statutory basis, fee schedules that directed lawyers what to charge for certain services were once common in Ontario.156Â In the mid-1980s, the Competition Bureau set its sights on fee schedules put in place by two county law associations in Ontario, the Waterloo Law Association and the Kent County Law Association, that related to residentialÂ real estate legal services and involved sanctions for non-adherence.157Â The Waterloo Law Association initially responded to the investigation initiated by the Competition Bureau by seeking, among other things, a declaration from the Ontario Superior Court that theÂ Competition ActÂ did not apply to its activities.158Â Justice Eberle, who heard the matter, ultimately took the position that the application was premature given that no charges had yet been laid under theÂ Competition Act.Â It was clear, however, that he rejected the proposition that lawyers enjoyed a complete exemption from the operations of theÂ Competition Act:
- The fact that governance of the legal profession and of its members is within the provincial legislative domain, under property and civil rights, does not remove lawyers from the reach of a valid criminal law. For example, a lawyer is subject to criminal prosecution if he commits murder or theft, or any other crime. This remains the case even where, as here, the province has delegated governing powers over the legal profession to a provincial law society.Â 159
- Ultimately, in 1988, both the Waterloo and Kent County law associations consented to the issuance of court orders of prohibition which, among other things, prohibited them from promulgating any schedule of fees for legal services and mandated certain reporting requirements for a five-year period.160Â Although the court orders issued only related to small groups of lawyers in Ontario, these tariff cases stand as yet another example of courts rejecting exceptional treatment for the legal profession and ousting self-serving measures in favour of the public interest.
- 3.Â Conduct rules
As seen in the above examples, during the 1970s and 1980s, the courts were active in rejecting various anti-competitive restrictions on entry, advertising, and fees. In the 1990s, judicial review of conduct rules applying to the profession led to important regulatory changes. Most significantly, judges acted to regulate in the areas of conflicts of interest and withdrawal from the record. In both cases, the standards established by the courts placed a greater emphasis on the public interest than the standards contemporaneously favoured by the profession itself.
- Conflicts of interest
Broadly speaking, conflict of interest rules for lawyers operate to regulate the risk that a lawyer’s representation of a client “would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person.”161Â Conflict of interest rules relate to a lawyer’s ethical duties-for example, the duties of loyalty and confidentiality-but can also engage a lawyer’s economic interests. Simply put, if a lawyer is prevented from acting for a client as a result of a deemed conflict, the lawyer loses the client and all associated fees. In general, Canadian courts adjudicate on conflicts of interest in the course of exercising their inherent jurisdiction over the court’s processes and in administering civil actions for breach of fiduciary duty.
Conflicts of interest gained a new prominence in Canada in the last several decades as a result of a trilogy of Supreme Court of Canada decisions.162Â In the first case that “ignited the conflicts revolution in Canada,”163Â Martin v. Gray,164Â the issue was whether the law firm representing the defendant was precluded from continuing to act because an associate who had previously assisted in representing the plaintiff at another firm was now working at the defendant’s firm. In considering whether an impermissible conflict arose, the majority held that courts must consider to the “possibility of real mischief”Â with respect to the misuse of confidential information by a lawyer against a former client ratherÂ than a lower standard that would only require the “probability of real mischief.”165Â Writing for the majority, Sopinka J rejected the proposition that the realities of the modem practice of law-the rise of the large firm, mergers, and the more regular movement of lawyers between firmsÂ should lead to a “slackening” of the conflicts of interests rule.166
As Adam Dodek has observed, the majority reasons inÂ Martin v. GrayÂ may be read as deferential to the legal profession.167Â Justice Sopkina acknowledges, for example, that lawyers are a self-governing profession and the courts should consider an expression of a standard in codes of professional conduct to be, although not binding on the courts, “an important statement of public policy. “168Â He also suggests that the Canadian Bar Association should take the lead in determining whether institutional screening devices “such as Chinese walls and cones of silence” might be effective in shielding against a transferee lawyer “tainting” his or her new law firm and in developing national standards for using such devices.169
Notwithstanding the deference shown, the immediate reaction of the Canadian legal profession toÂ Martin v. GrayÂ was intense and the decision “sent shockwaves through the Canadian legal profession.“170Â In response to the Court’s invitation, the Canadian Bar Association set up a Task Force that produced a report setting out guidelines to assist in “screening” transferring lawyers to avoid disqualification in cases where the transferring lawyer has received confidential information attributable to a solicitor-client relationship while working at his or her former firm that would put him or her in a position of conflict at the new firm.171Â The recommendations set out in the report were, in general, endorsed by the profession and found their way into governing codes of conduct.172
Roughly a decade later, the Supreme Court of Canada decided another major conflict case. InÂ R. v. Neil,Â the court considered the question of dutiesÂ owed to concurrent clients, rather than that of duties owed to former clients that was raised inÂ MartinÂ v.Â Gray.Â Justice Binnie, writing for a unanimous court, characterized the central issue on appeal as follows: ”What are the proper limits of a lawyer’s ‘duty of loyalty’ to a current client in a case where the lawyer did not receive any confidential information that was (or is) relevant to the matter in which he proposes to act against the client’s current interest?”173Â The Court adopted a “bright-line” rule which dictated thatÂ a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client-evenÂ if theÂ two mandates are unrelated-unlessÂ both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client withoutÂ adversely affecting the other.174
In arriving at this rule, the Court leaned on the notion that strict rules regarding conflicts of interest were necessary to ensure that the public maintained confidence in the legal system.175Â The impact of NeilÂ was even more intense than that of Martin v. Gray:Â “f Martin v GrayÂ was an earthquake,Â NeilÂ was treated more like a tsunami threatening Canadian legal practice.”176
Several years later, the Supreme Court of Canada once again addressed the issue of a duty of loyalty inÂ 3464920 Canada Inc. v. Strother.Â 177Â In this case, the Court considered the situation of a lawyer (Strother) who had, among other things, obtained a substantial and direct financial interest in a client (Sentinel) in competition with another client (Monarch). The majority decision found that Strother had breached his fiduciary duty to Monarch by accepting a personal interest in Sentinel.178Â As summarized by Binnie J: “Strother could not with equal loyalty serve Monarch and pursue his own financial interest which stood in obvious conflict with MonarchÂ making a quick re-entry into the tax-assisted film financing business.”179Â The minority decision by McLachlin CJ took a different view, beginning from the premise that the duty of loyalty owed to a client must be informed by the content of the contractual retainer. Given the fact that, at the time of Strother’s investment he was under a new retainer with Monarch that provided he was only to provide advice when specifically asked and was free to act for competitors, the minority decision found that “there is no reason to conclude that Strother’s capacity to loyally and zealously perform the very limited duties to Monarch under the 1998 oral retainer would be affected by his taking a personal interest in Sentinel Hill.”180
One way to understand the majority and minority decisions inÂ StrotherÂ is as a disagreement about whether, in a solicitor-client relationship, fiduciary duties overlay the contractual terms found in the retainer or vice versa.181Â In taking the former view, the majority decision opted to impose a more robust duty of loyalty on Canadian lawyers. As noted by Harvey Morrison, “f there were any hopes that the Supreme Court of Canada would moderate the rigour of the bright line rule inÂ Neil,Â they were dashed inÂ Strother.”182Â The bright-line test, or the “unrelated matters rule” affirmed in both of these cases gave conflicts of interest rules a broad mandate of application.
Following the decisions ofÂ NeilÂ andÂ Strother,Â the Canadian Bar Association reacted defensively, establishing another task force that produced a “surprisingly confrontational” report that argued that the brightÂ line rule set out by the Supreme Court of Canada “isÂ obiter,Â unreasoned, overly broad and contrary to the public interest.”183Â Equally surprising, perhaps, were the extra-judicial comments from a sitting Supreme Court of Canada justice about the report. In a speech delivered at a conference in Strasbourg, France, Justice Binnie directly confronted the content of the CBA task force report, emphasizing the need to “enhance the public trust” in the legal profession and the important role of more, not less, strict conflicts rules.184Â Indeed, the title of the speech “Sandage apres sondage”Â
(Poll after Poll) was a direct reference to a recent speech given by the former president of the Quebec Bar in which he referenced the fact that lawyers find themselves poorly ranked (alongside politicians and used car dealers) in surveys regarding the public confidence in the legal profession. In view of this back and forth and these unusual extra-judicial comments, it might be fairly said, as Adam Dodek has previously, that “he tension between judicial regulation and self-regulation is perhaps most evident in the area of conflicts of interest.”185
Most recently, in the 2013 case ofÂ Canadian National Railway Co. v. McKercher LLP,186Â the Supreme Court of Canada once again considered the issue of lawyer conflicts. This case involved a large firm in Saskatchewan, McKercher LLP, that had accepted a retainer to act against the Canadian National Railway Company in a class action lawsuit notwithstanding the fact that it was acting for CN on a variety of unrelated matters. CN only learned of McKercher’s involvement in the class action matter once it was served with a statement of claim. In the month before serving the statement of claim and in the days following service, the firm terminated its existing retainers with CN, except for a retainer on one file which CN itself terminated. CN applied for an order removing McKercher as solicitor of record for the plaintiff in the class action against it. Writing for a unanimous court, McLachlin CJC concluded, among other things, that the situation “fellÂ squarely within the scope of the bright line rule”187Â and remitted the matter back to the lower court for redetermination in accordance with the Court’s reasons. In terms of the development of the law of conflicts, the Court inÂ McKercherÂ reaffirmed the bright line rule set out inÂ NeilÂ and clarified its scope.188
For the purposes of this article, Chief Justice McLachlin’s comments at paragraph 16 of the decision are perhaps the most interesting wherein she writes:
-  Both the courts and law societies are involved in resolving issues relating to conflicts of interest-the courts from the perspective of the proper administration of justice, the law societies from the perspective of good governance of the profession: seeÂ R. v. Cunningham,Â 2010 SCC 10,  1 S.C.R. 331. In exercising their respective powers, each may properly have regard for the other’s views. Yet each must discharge itsÂ unique role. Law societies are not prevented from adopting stricter rules than those applied by the courts in their supervisory role. Nor are courts in their supervisory role bound by the letter of law society rules, although “an expression of a professional standard in a code of ethics…should be considered an important statement of public policy”:Â Martin,Â at p. 1246.
- Although the above suggests a co-operative relationship between the courts and the law societies, and distinct roles for each, it fails to acknowledge that both institutions are, in fact, regulating precisely the same area oflawyer conduct (albeit for different ends) and that the judiciary, beginning withÂ Martin v. GrayÂ in 1990, has inserted itself as a regulator in this area in an unprecedented fashion which has led to significant changes in how conflict of interests are regulated not only by the courts but also by law society rules. Moreover, the positions taken by the Court have resulted in greater regulation in this area and, in some cases, been in direct opposition to the positions taken by the legal profession.189
In 2010, the Supreme Court of Canada again waded into the area of lawyer conduct in considering the circumstances under which lawyers should be permitted to withdraw from the record. InÂ R v. Cunningham,190Â a unanimous Supreme Court confirmed that courts have the authority to mandate that counsel continue to represent an accused in circumstances where counsel wishes to withdraw because of non-payment of legal fees, although this authority “must be exercised sparingly, and only when necessary to prevent serious harm to the administration of justice.”191Â The decision also confirmed that the authority to refuse an application for withdrawal did not extend to circumstances where withdrawal was sought for an ethical reason: in such cases “the court must grant [the] withdrawal.”192Â Although at the time this case was heard, the majority of provincial and territorial appellate courts held that courts had jurisdiction to prevent defence counsel from withdrawing due to non-payment in fees, there was some division in the case law and differing approaches had beenÂ taken in the codes of conduct established by provincial law societies.193Â In clarifying the law,Â CunninghamÂ generated some bold headlines.194
InÂ Cunningham,Â the Court again had the opportunity to discuss the relationship between the judicial regulation of lawyers and the role of self-governing bodies. The Court of Appeal for Yukon had held that the court had no jurisdiction to refuse a withdrawal for non-payment of fees, in part, because the legal profession is self-governing and that the provincial and territorial law societies have primary responsibility over lawyer regulation.195Â The Yukon appeals court expressed concern that “the potential for an unseemly conflict would exist if the court took one view of a lawyer’s conduct in withdrawing, and the Law Society took another.”196Â The Supreme Court of Canada considered this issue, but ultimately found that this tension did not preclude the courts from exercising jurisdiction, commenting that
- he law societies play an essential role in disciplining lawyers for unprofessional conduct; however, the purpose of the court overseeing withdrawal is not disciplinary. The court’s authority is preventativeÂ to protect the administration of justice and ensure trial fairness. The disciplinary role of the law society isÂ reactive.Â Both roles are necessary to ensure effective regulation of the profession and protect the process of the court.197
- Despite the Court’s evocation of complementary roles for the law societies and courts in this area, it is hard to escape the conclusion that the Supreme Court of Canada inÂ R v. CunninghamÂ issued a judicial trump card in the area of lawyer withdrawal. Even where ethics rules promulgated by law societies allow for withdrawal for non-payment of fees, a court has the power to refuse to allow the lawyer to withdraw. Although, as the Court indicated, this power is to be used only “sparingly,” its impact is tremendously significant: a lawyer can be forced to act for a client, for free, against the lawyer’s wishes. In a narrow set of cases, therefore, courts have been given the power to exercise a powerful form of lawyer regulation.
- Conflicts of interest
4.Â Judges and entry restrictions, post-entry limitsÂ onÂ competition and conduct rules
In adjudicating disputes in the areasÂ ofÂ entry restrictions, post-entry limits on competition, and post-entry conduct rules, the judiciary has repeatedly taken measures to promote the public interest and has often rejected self-serving standards favoured by the legal profession. Although the above account outlines a numberÂ ofÂ laudable measures taken by the legal profession to, for example, liberalize entry restrictions and rules relating to advertising and unauthorized practiceÂ ofÂ law, these measures have often only come after considerable resistance and court intervention.
Before these judicial measures can be fairly classified as amounting to a regimeÂ ofÂ aggressive judicial co-regulation, however, it is again necessary to address several possible objections. First, it may fairly be pointed out that the judicial record in these areas has been mixed. Initial efforts to invalidate citizenship requirements, for example, were rebuffed by the courts. The Supreme CourtÂ ofÂ Canada also originally upheld the advertising restrictions imposed by the Law SocietyÂ ofÂ British Columbia. Moreover, not all appellate courts have limited efforts by law societies to exclude paralegals or non-Canadian lawyers from providing legal services.19Â These examples require an acknowledgement that theÂ judicialÂ regulationÂ ofÂ lawyers has not always immediately or straightforwardly favoured the public interest at the expenseÂ ofÂ lawyers’ narrow self-interest. However, in eachÂ ofÂ the aboveÂ areas-entryÂ restrictions, advertising andÂ paralegals-theÂ courts did ultimately inspire, if not dictate, significant change: citizenship requirements were ultimately deemed invalid by the Supreme CourtÂ ofÂ Canada inÂ Andrews,Â advertising restrictions were liberalized in the contextÂ ofÂ a seriesÂ ofÂ post-Chartercases finding freedomÂ ofÂ expression protections applied to commercial speech and professional advertising, and paralegal regulation has been reviewed in provinces across Canada following the courts’ attention to the issue. In short, the courts have had a meaningful impact in mitigating abusesÂ ofÂ self-regulatory powers: unnecessary entry restrictions and limits on competition have been judicially rejected, leading to reforms which have resulted in a regulatory environment more attentive to the public interest. Moreover, the chronology outlined in this Part suggests that courts have become more and more bold in confronting the profession’s self-serving standards as the decades have progressed.
Second, one might object to the argument that aggressiveÂ judicialÂ regulation has occurred in lightÂ ofÂ the relianceÂ ofÂ courts on legislativeÂ developments in their regulatory activity: specifically, amendments to federal competition legislation and the introduction of theÂ Canadian Charter of RightsÂ and Freedoms. Except for the developmentsÂ inÂ conflicts of interest and withdrawal rules, itÂ isÂ difficult toÂ seeÂ how the courts would have taken many of the measures described in this Part without these statutory tools.Â ToÂ be sure, this observation reveals the limited natureÂ ofÂ judicial regulation. The power of the courts to regulate the legal professionÂ isÂ not “at-large” but arisesÂ inÂ relation to common law rights of action, statutory provisions, and the courts’ inherent jurisdiction. The above account does reveal, however, that the courts have used the tools provided toÂ them-however limited-toÂ regulate the legal profession in the public interest. The reforms that have resulted are significant, both collectively and individually.
- Entry restrictions
The changes that have occurred in the Canadian legal profession over the last several decades have been significant. The courts have played a major role in these reforms, and their decisions have had a profound impact on how lawyers are regulated in Canada. As this article has demonstrated, there is still much work to be done to ensure that the legal profession is adequately regulated and that lawyers are held accountable for their actions. However, it is clear that the Canadian regulatory environment has undergone significant change since the early 1970s, and that these changes have been largely driven by judicial intervention.
This account of the role of the judiciary in Canadian lawyer regulation provides a useful starting point for such discussions.
- This term finds its source in Richard Devlin & Albert Cheng, “Re-calibrating, re-visioning and rethinking self-regulation in Canada” (2010) 17:3 Int’! J L Prof 233. I use this term in a manner consistent with Devlin and Cheng, namely, to label the “increasingly muscular approach to the regulation of the legal profession” taken by Canadian law societies (at 234) and I rely on some of these authors’ observations. As my review of the regulatory environment extends to an earlier time period than that addressed by Devlin and Cheng, however, I also use this term to describe developments that precede the activity discussed in their paper.
- The term “lawyer-judge bias” is taken from Benjamin H Barton, The Lawyer-Judge Bias in the American Legal System (New York: Cambridge University Press, 2011). Barton has been a leading proponent of this theory in the context of the American legal system.Â
- Ibid at 2.
- Ibid at 3.
- For a more detailed account of the role that American judges play in regulating American lawyers, see, e.g., Fred C Zacharias, “Rationalizing Judicial Regulation of Lawyers” (2009) 70 Ohio St LJ 73.
- As stated by Adam Dodek in “Lawyers, Guns, and Money: Lawyers and Power in Canadian Society” in David L Blaikie et al, eds, Why Good Lawyers Matter (Toronto: Irwin Law, 2012) 57 at 62:
- It is an obvious but important point that all judges are drawn from the ranks of lawyers. Most judges are persons who practiced law for twenty to thirty years. They are steeped in the culture of the law and of the legal profession. They may be expected to be sympathetic to and supportive of the existing structures of power from whence they came.Â
- See also, Richard F Devlin & Porter Heffernan, “The End(s) of Self-Regulation?” (2008) 45 Alta L Rev 169 at 208.Â
- Indeed, some commentators proceed-in a manner that I reject-by characterizing judicial inolvement in lawyer regulation as a form of self-regulation because judges are lawyers (or former lawyers). For further discussion, see, e.g., Fred Zacharias, “The Myth of Self-Regulation” (2009) 93 Minn LRev 1147 at 1153.
- Tanina Rostain, “Self-Regulatory Authority, Markets, and the Ideology of Professionalism,” in Robert Baldwin et al, eds, The Oxford Handbook of Regulation (New York: Oxford University Press, 2010) 169 at 169.
- Michael J Trebilcock, “Critical Issues in the Design of Governance Regimes for the Professions” (1989) 23 Law Society Gazette 349 at 350-351 [emphasis added].
- Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c II.
- See, e.g., the Competition Act, RSC 1985, c C-34 and its predecessors.
- For evidence of some of this earlier criticism, see, e.g., PJ Giffen, “Social Control and Professional Self-Government: A Stndy of the Legal Profession in Canada” in SD Clark, ed, Urbanism and the Changing Canadian Society (Toronto: University of Toronto Press, 1961) at 117.
- Ibid at 131 and generally. In this chapter, Giffen traces some of the major challenges that the legal profession in Canada faced from the 1920s to 1960s to its authority to self-regulate and also reviews some of the defensive measures taken by the law societies including the establishment of “reimbursement funds” to compensate clients for financial losses suffered as a result of defaulting solicitors, the organization of legal aid programs, and the development of public relations programs.
- Harry W Arthurs “Public Accountability of the Legal Profession” in Philip A Thomas, ed, Law in the Balance: Legal Sen;ices in the 1980s (Oxford: Martin Robertson, 1982) 161.
- The name of the Report derives from the fact that the Commission had “initially been concerned with the professions involved in the provision of health and social se1Vices[,]” but had expanded its mandate as it “became convinced that since other professions faced problems that were similar in nature, the matter should be approached globally.” Pierre Issalys, “The Professions Tribunal and the Control of Ethical Conduct among Professionals” (1978) 24 McGill LJ 588 at 592.
- Professional Code, CQLR c C-26.
- Issalys, supra note 16 at 588.
- Ibid at 588 and generally for the changes introduced. See also, “The Professional System,” online: Conseil interprofessionnel du Quebec <https://www.professions-quebec.org/index.php/en/ element/visualiser /id/7>.
- Ontario, Royal Commission, Inquiry into Civil Rights: Report No 1 (Toronto: Queen’s Printer, 1968) [McRuer Report].
- Harry Arthurs, “Authority, Accountability, and Democracy in the Goverrnnent of the Ontario Legal Profession” (1971) 49: 1 Can Bar Rev 1 at 1.
- As framed in the McRuer Report, supra note 20 at 1162, “The relevant question is not, ‘do the practitioners of this occupation desire the power of self-goverrnnent? ,’ but ‘is self-goverrnnent necessary for the protection of the public?”‘
- Ibid, vol 3 at 1209.
- TG Bastedo, “A Note on Lawyers’ Malpractice: Legal Boundaries and Judicial Regulations” (1969-1970) Osgoode Hall LJ 311 at 311.
- RSO 1970, c 238.
- These measures included, for example, provision for decisions by benchers in disciplinaiy matters to be appealable to the Ontario Court of Appeal and the designation of the Attorney General as an ex officio bencher, and to be “the guardian of the public interest in all matters within the scope of the [Law Society Act] or having to do with the legal profession.” For further discussion, see, e.g., Arthurs, “Authority, Accountability, and Democracy,” supra note 21.
- As reported by Hariy Arthurs over a decade after the new legislation was introduced, “he new Quebec regime apparently functions without much direct intervention in the profession’s affairs” and “here is, in fact, little concrete evidence … to suggest that the autonomy of the Quebec bar has been eroded”: Arthurs, “Public Accountability of the Legal Profession,” supra note 15 at 179-180; Arthurs et al, “The Canadian Legal Profession” (1986) Am B Found Res J 447 at 476. Arthurs similarly reported that, “in Ontario, neither the lay benchers nor the Attorney General, in his role as a bencher ex officio, appear[ ed] to have taken any policy initiatives”: Arthurs, “Public Accountability of the Legal Profession,” supra note 15 at 179-180.
- For further discussion, see, e.g., Christopher Moore, The Law Society of Upper Canada and Ontario s Lawyers, 1797-1997 (Toronto: University of Toronto Press, 1997) at 283-284; and Arthurs, “Public Accountability of the Legal Profession,” supra note 15 at 179-180.
- Alberta, Legislative Assembly, Special Committee of the Legislative Assembly of Alberta on the Professions and Occupations, Report 1 (Edmonton: Queen’s Printer, 1973); Alberta, Legislative Assembly, Special Committee of the Legislative Assembly of Alberta on the Professions and Occupations, Report 11 (Edmonton: Queen’s Printer, 1973); FC Muldoon, Report of the Manitoba Professional Associations Study Group (1972).
- Ontario, Professional Organizations Committee, The Professional Organizations Report (Toronto: Ministiy of the Attorney General, 1980). For further discussion, see Carolyn J Tuohy “Public Accountability of Professional Groups: The Case of the Legal Profession in Ontario” in Robert G Evans & Michael J Trebilcock, Lawyers and the Consumer Interest: Regulating the Market for Legal Sen;ices (Toronto: Butterworths, 1982) 105 at 115.
- Alberta, Council on Professions and Occupations, Discussion Paper: Principles and Policies Governing Professional Legislation in Alberta by Diane Morash (Edmonton: Professions and Occupations Bureau, 1989); Saskatchewan, Discussion Paper: Towards the Development of a Professions Policy for Saskatchewan (Regina: Queen’s Printer, 1990); Manitoba, Law Reform Commission, Regulating Professions and Occupations (Winnipeg: Queen’s Printer, 1994).Â
- Competition Bureau of Canada, Self-Regulated Professions-Balancing Competition and Regulation (Gatineau: Competition Bureau, 2007). The five professions examined were accountants, lawyers, optometrists, pharmacists, and real-estate agents. A brief post-study assessment was published in 2011.
- For example, as reported by Harry Arthurs with respect to the results of second Ontario review: The Committee’s formal Report, obviously intended to mollify the Law Society, … virtually accepted the status quo in all matters pertaining to the Society’s internal govermuent and policies.
Arthurs, “Public Accountability of the Legal Profession,” supra note 15 at 172 [footnotes omitted]. Â
- See, e.g., the discussion in Wesley W Pue, “Foxes, Henhouses, Unfathomable Mysteries, and the Sufferance of the People: A Review of Regulating Professions and Occupations” (1996) 24 Man LJ
- Gene Anne Smith, “Liability for the Negligent Conduct of Litigation: The Legacy of Randel v Worsley” (1982-1983) 47 Sask L Rev 211 at 212.
- Although the immunity was first understood and applied in relation to barristers, the House of Lords confirmed that this immunity extended to solicitors in Saif Ali v Sydney Mitchell & Co,  AC 198 HL (Eng).
- Thomas Beven, Neglience in Law vol 2, 3rd ed (London: Stevens and Haynes, 1908) 1204 .
- Lai v Chamberlains,  NZSC 70,  2 NZLR 7.
- See, Goddard Elliott (a firm) v Fritsch,  VSC 87 and Donnellan v Woodland, NSWCA 433 as examples ofrecent cases where this immunity has been applied in Australia.
- Leslie v Ball (1863), 22 UCR 512 [the court is Upper Canada Queen’s Bench].
- Randel v Worsley,  UKHL 5,  I AC 191 [Randel].
- With the possible exception of one of the rationales given that was rooted in the cab-rank rule. Indeed, in a commentary published in the Canadian Bar Review shortly following the decision, Marvin Catzman opined that, notwithstanding the fact that English precedents were not binding in Commonwealth countries,
- it will have not escaped the reader’s attention that substantially all of the considerations of public interest which the members of the House of Lords found so compelling are equally appropriate to the realities of Canadian litigation. In the writer’s review, therefore, it is not unlikely that, when a Canadian Ronde! and a Canadian Worsley have the mutual misfortune to combine, our courts may well extend the immunity from action which the House of Lords saw fit to bestow upon Worsley to his hapless Canadian counterpart.Â
(Marvin A Catzman (1968) 46:3 Can Bar Rev 505 at 515.)Â
- it will have not escaped the reader’s attention that substantially all of the considerations of public interest which the members of the House of Lords found so compelling are equally appropriate to the realities of Canadian litigation. In the writer’s review, therefore, it is not unlikely that, when a Canadian Ronde! and a Canadian Worsley have the mutual misfortune to combine, our courts may well extend the immunity from action which the House of Lords saw fit to bestow upon Worsley to his hapless Canadian counterpart.Â
- See, e.g., Banks v Reid (1974), 6 OR (2d) 404 (SC (ID), wherein the trial judge commented that, although he had dismissed the allegations of negligence against the defendant lawyer on other grounds, he would have dismissed the case on the basis of Randel v Worsley in any event. The Court of Appeal, ( 1977) 18 OR (2d) 148 (CA), reversed the trial judge’s decision on other grounds; however, Brooke JA, writing for the court, also commented:Â
- If it is applicable at all in this jurisdiction, where practitioners are both barristers and solicitors, Randel v. Worsley should be confined to issues between a barrister and his client in the discharge of the barrister’s duties before a Court[.]Â
- A similar comment was made by the court in Gouzenko v Harris (1976), 13 OR (2d) 730 (H Ct J), wherein Justice Goodman wrote that “[e]ven if [Randel v Worsley] is applicable to persons engaged in providing the services of a barrister in this province, it is, in my opinion, of no assistance to the solicitors in this case.” See, also, Beckmat Leaseholds Ltdv Tassou (1978), 14 AR 468 (Dist Ct).Â
- Demarco v Ungaro (1979), 21 OR (2d) 673 (H Ct J) [Demarco].
- Ibid at 238 .
- StephenE Traviss, “ABarrister’s Liability to Civil Suit in Ontario: A Case CommentonDemarco v. Ungaro and Barycky” (1979) 13 Law Society Gazette 262 at 269.
- Bryan Baynham & Andrew Baldwin, “Barristers’ Immunity” (1985) 43:5 The Advocate 611 at 614.
Note, however, that a dissenting view was also published in the subsequent issue of the trade journal: Darrell W Roberts, “Barrister’s Immunity-A Different View” (1986) 44:2 The Advocate 197.
- Smith, supra note 35 at 212.
- Stephen M Grant & Linda Rothstein, Lawyers’ Professional Liability, 2nd ed (Toronto: Buttersworth Canada, 1998) at 6.
- Groom v Crocker,  I KB 194.
- Ibid at 205.
- Hany B Radomski, “Actions Against Solicitors-Contract or Tort?” (1979-1981) 2 Advocates’ Q 160 at 179. See also, Allen M Linden, Canadian Tort Law (Toronto: Butterworths, 1977) at 108 : “The duty owed by a lawyer to his client has been founded on contract, not on tort, for well over a century.”
- Central Trust Co v Rafuse,  2 SCR 147 at para 13 [Rafuse].
- Ibid at para 52.
- See, e.g., Hett v Pong,  18 SCR 290 at 292: “an attorney is bound to bring to the exercise of his profession a reasonable amount of knowledge, skill and care in connection with the business of his client.” This language has been cited approvingly in a number of subsequent cases, including Rafuse, supra note 54 at 208 andRistimaki v Cooper (2006), 79 OR (3d) 648 (CA) at para 59.
- For example, in the 1915 case of Marriott v Martin (1915), 21 BCR 161 (SC (ID)), the court held that the plaintiff was required to establish not merely an error of judgment on the part of his solicitor but a want of professional care and skill to such an extent as to render the defendant liable for gross negligence. In arriving at this conclusion, the court reviewed the Canadian and English authorities on the issue, including the statements of Lord Brougham in Purves v Lande!! that “t is of the very essence of [an action against a solicitor for negligence] that there should be a negligence of a crass description, which we call crassa negligentia” The reference to the standard of crassa negligentia by Canadian courts continued throughout the twentieth century. See, e.g., Schmalzbauer v Gares (1990), 89 Sask R 254 (QB) at para 18; B & R Farms Ltdv James Ulmer (1987), 55 Sask R 309 (QB) at para 10; Nielsen v Watson (1981), 33 OR (2d) 515 (H Ct J) at para 17; Page v Dick (1980), 12 CCLT 43 (H Ct J); Samayoa v Marks (1974), 6 OR (2d) 419 (Sup Ct) at para 52; Brenner v Gregory,[ 1973] 1 OR 252 (H Ct J) at para 13.
- Demarco, supra note 44 at para 24.
- Although not specifically mentioning a standard of “egregious error,” the Ontario Court of Appeal approvingly cited the test set out in Demarco in Wong v Thomson, Rogers, 1994 CarswellOnt 2925 (WL Can) (CA). A number of lower court decisions specifically applied the “egregious error” standard. See, e.g., Karpenko v Paroian, Courey, Cohen & Houston (1980), 30 OR (2d) 776 (ON Sup Ct), applying the standard to settlements; Forbes v Siskind, Cromarty, Ivey & Dowler LLP (2003), 20 CCLT (3d) 87 (Sup Ct), applying the standard with respect to counsel’s conduct in an arbitration; Bhagat v Raby (Trustee of), 2000 CarswellOnt 1094 (WL Can) (Sup Ct), in relation to advice given to negotiate rather than appeal a court order; Simanek v Lamourie, 2001 Carswell Ont 3559 (WL Can) (Sup Ct), regarding conduct in family law litigation; Noble v Lourensse, 2001 NBQB 251, regarding conduct of litigation in a real property matter.
- Meister v Coyle, 2010 NSSC 125 at para 40.Â
- Beverly G Smith, Professional Conduct for Lawyers and Judges (Fredericton, NB : Maritime Law Book, 1998) at 74.
- Di Martinov Delisio (2008), 58 CCLT (3d) 218 (ON Sup Ct).
- Henderson v Hagblom, 2003 SKCA 40 at para 69, 232 Sask R 81 (CA).
- Folland v Reardon (2005), 249 DLR (4th) 167 (ON CA) at para 41.
- Ibid [footnote omitted].
- Grant & Rothstein, supra note 50 at 65.
- See discussion in Grant & Rothstein, supra note 50 at 70.
- See discussion in ibid at 70-97; and Debra Rolph, “Solicitors’ Liability to Non-Clients in Negligence” (1993) 15 Advocates’ Q 129.
-  AC 465.
- Grant & Rothstein, supra note 50 at 83; Rolph, supra note 70 at 153-154.
- Earl v Wilhelm, 2000 SKCA I at para 35, 183 DLR (4th) 45.
- See, e.g., McCullough v Riffert, 2010 ONSC 3891 at para 48, 76 CCLT (3d) 71.
- The material found in this section is both directly taken and developed from material previously published in Amy Salyzyn, “A Comparative Study of Attorney Responsibility for Fees of an Opposing Party” (2013) 3:2 St. John’s J Int’! Comp L 71.
- Paul Perell, “Ordering a Solicitor Personally to Pay Costs” (2001) 25 Advocates’ Q 103 at 103-104. See, e.g., the Ontario Conrt of Appeal’s comments in Re Ontario Crime Commission,  1 OR 391 at para 23 (CA), whereby the court ordered a lawyer to personally pay costs where he had knowingly filed a false affidavit of a client. In so ordering, the court quoted from Lord Wright’s speech in Myers v Elman including his statement that, ” mere mistake or error of judgment is not generally sufficient [for the court’s exercise of its inherent disciplinary authority], but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice.”Â
- Young v Young,  4 SCR 3.
- The Supreme Conrt found that no cost should be awarded against the lawyer personally in Young. Following Young, a number of Canadian courts cited Justice McLachlin’s comments therein as having established the proposition that the exercise of the courts’ inherent jurisdiction to award costs against lawyers personally required a finding of “bad faith.” See, e.g., Schwisberg v Perry Krieger & Associates (1997), 33 OR (3d) 256 (CA); Marchand v Public General Hospital Society of Chatham et al (1998), 16 CPC (4th) 201 (ON Gen Div); Markdale Ltd v Ducharme (1998), 238 AR 98 (QB).
- Rules of Civil Procedure, RRO 1990, Reg 194, s 57.07.
- W David Scott, “Costs and the Rules of Civil Procedure” in New Rules of Civil Procedure (Toronto: Law Society of Upper Canada, The Canadian Bar Association-Ontario, The Advocates’ Society, 1984) at 12-2.
- The comments of David W Scott, a senior practitioner in Ontario, reflect a number of the profession concerns at the time:Â
- The fact that a significant portion of the relief encompassed by Rule 57.07 was available in the ordinary exercise of the Court’s extraordinary discretion is beside the point. The codification of this relief is, I would suggest, ominous. It is not a rule which will give much pause to the experienced practitioner. The inexperienced members of the Bar are another matter. How many times have we all, in our developing years, agonized over claims to make, issues to raise, lines of questioning to develop, as part of our responsibilities to our clients in the framework of our roles as officers of the Court? Will this process, in the hands of the young lawyer, be encouraged to the advantage of the client if the sword of Rule 57 .07 hangs over counsel’s head as a backdrop against which the strategy of presenting the client’s case is developed? It is not unlikely that codification and expansion of this drastic remedy may serve to intimidate the responsible lawyer more than the reverse.Â
- Ibid at 12-8-12-9.Â
- Re Danson and Attorney-General of Ontario (1985), 51 OR (2d) 405 (H Ct J).
- Danson v Ontario (Attorney General),  2 SCR 1086 at para 28.
- Ibid at para 2.
- Marchand (Litigation Guardian of) v Public General Hospital Society of Chatham (1998), 16 CPC (4th) 201 (ON Gen Div) [Marchand].
- Ibid at para ll5.
- Ibid at para 121.
- See, e.g., Beardy v Canada (Attorney General) (2003), 42 CPC (5th) 181 (ON Sup Ct); Burrell v Peel (Regional Municipality) Police Services Board, 2007 CarswellOnt 7767 (WL Can) (ON Master); McDonald v Standard Life Assurance Co (2007), 50 CCLI ( 4th) 301 (ON Sup Ct); Kerr v CIBC World Markets Inc, 2013 ONSC 1109. In Galganov v Russell (Township) 2012 ONCA 410, 294 OAC 13, the Ontario Court of Appeal confirmed that the appropriate standard to be applied under Rule 57 .07 is as set out in Marchand and that “mere negligence can attract costs consequences in addition to actions or omissions which fall short of negligence.”
- Nazmdeh v Spraggs, 2010 BCCA 131 at 102, 83 CPC (6th) 201. Although, see also, Waters v DaimlerChrysler Financial Services Canada Inc, 2011 SKCA 53, 371 Sask R 153, wherein the Saskatchewan Court of Appeal considered the issue of lawyer responsibility for costs in terms of the inherent jurisdiction of the court and relied on, inter alia, Young v Young in setting out a threshold of serious dereliction of duty.
- Arthurs, “Public Accountability of the Legal Profession,” supra note 15 at 178-179.
- Hany Arthurs, “The Dead Parrot: Does Professional Self-Regnlation Exhibit Vital Signs?” (1995) 33:4 Alta L Rev 800 at 807.
- Canadian Bar Association, Code of Professional Conduct (Ottawa: Canadian Bar Association, 1974) and Canadian Bar Association, Canons of Legal Ethics (Ottawa: Canadian Bar Association, 1920). The introduced rule on “Competence and Quality of Service” read:
- The lawyer owes a duty to his client to be competent to perform any legal services which the lawyer undertakes on his behalf.Â
- The lawyer should serve his client in a conscientious, diligent and efficient mannerÂ and he should provide a quality of service at least equal to that which lawyers generally would expect of a competent lawyer in a like situation.Â
- Prior to the introduction of the 1974 CBA Code provisions, steps had been taken in Quebec and British Columbia to increase focus on the competence of members of the legal profession. The 1974 CBA Code has, however, been singled out asÂ
- provid the major impetus for the movement of the Canadian law societies into the regulation of professional competence and quality of service.Â
- Hurlburt, infra note 108 at 118.Â
- Arthurs et al, “The Canadian Legal Profession,” supra note 27 at 490.
- Arthurs, “Dead Parrot,” supra note 91 at 807. It should be noted, as was pointed out by an anonymous reviewer of this article, that incentives may differ between different jurisdictions as in some jurisdictions (like, for example, Alberta), the insurer and law society are not separate bodies, while in others they are (like, for example, Ontario).
- For further discussion, e.g., Alice Woolley, “Regulation in Practice: The ‘Ethical Economy’ of Lawyer Regulation and a Case Study in Lawyer Deviance” (2012) 15 :2 Legal Ethics 243.
- Pearlman v Manitoba Law Society Judicial Committee,  2 SCR 869 [Pearlman].
- Ibid at 880.
- Ibid at 890.
- Law Society of New Brunswickv Ryan, 2003 SCC 20,  1 SCR 247 [Ryan].
- Ibid at para 40.
- Beppi Crosariol, “Supreme Court decision puts watchdogs on high alert,” The Globe and Mail (16 August 2004), online: The Globe and Mail
https://www.theglobeandmail.com/life/food-and-wine/supreme-court-decisioâ€¦ article 3 65 7 44/page I.
- Finney v Barre au du Quebec, 2004 SCC 36,  2 SCR 17.
- Ibid at para 45.
- As Devlin & Heffernan point out:
- “Even in finding for Finney, the Court did not set an impossibly high standard for the Barreau to meet in its duty to the public. A standard of gross carelessness does not requireÂ that the Barreau watch over the shoulder of every lawyer, all the time, but rather that it institute effective, quick processes to deal with complaints as they come in, and to deal with lawyers who are unfit to practice and are therefore a threat to the public”
- Supra note 7 at 174-175.
- Ibid at 175.
- Wilder v Ontario (Securities Commission) (2001), 53 OR (3d) 519 (CA).
- The quoted arguments were rejected by Justice Swinton at first instance at the Ontario Divisional Court (Wilder v Ontario (Securities Commission) (2000), 47 OR (3d) 361) and Justice Swinton’s reasons on this issue were, in tum, adopted by the Ontario Court of Appeal at paragraph 29 of its decision, Wilderv Ontario (Securities Commission) (2001), 53 OR (3d) 519 (CA).
- For a brief summary, see William H Hurlburt, The Self-Regulation of the Legal Profession in Canada and in England and Wales (Calgary: Law Society of Alberta, 2000) at 33-34.
- Andrews v Law Society of British Columbia,  I SCR 143 [Andrews].
- Blackv Law Society of Alberta, I SCR 591 [Black].
- Maurice Laprairie, “Regulatory Framework” in Adam M Dodek & Jeffrey G Hoskins eds, Canadian Legal Practice: A Guide for the 21st Century, loose-leaf (consulted on 20 May 2012)(Markham, Ontario: LexisNexis Canada, 2009), ch I at 1-12. See, also, Ellen Murray, Citizenship and Professional Practice in Ontario: A Working Paper (Toronto: Professional Organizations Committee, 1978) at 20-21 for a summary of the situation across Canada in 1978.
- As Hurlburt reports: “As late as 1970, a committee of the Couference of Governing Bodies of the Legal Profession in Canada recommended that citizenship be a requirement for a lawyer who wished to transfer to another province and that a lawyer coming into Canada be required to acquire citizenship before admission, though not before commencing to meet other requirements.” Hulburt, supra note 108 at 87-88.
- See Dickenson v Law Society of Alberta (1978), 10 AR 120 (QB); and Law Society of Upper Canada v Skapinker,  1 SCR 357.
- Due to the operation of section 32(2) of the Charter, the provisions of section 15 came into force three years later than the other provisions.
- Andrews, supra note 109.
- See discussion in Robert L Lenoir, “Citizenship as a Requirement for the Practice of Law in Ontario” (1981) 13 OttawaL Rev 527.
- Jack R London, “The Admissions and Education Committee: A Perspective on Legal Education and Admission to Practice in the Province of Manitoba-Past, Present and Future” in Cameron Harvey, ed, The Law Society of Manitoba: 1877-1977 (Winnipeg: Peguis, 1977) 74 at 98-99.
- For a summary, see discussion in Hurlburt, supra note 108 at 88.
- Competition Bureau of Canada, supra note 32.
- Ibid at 67-68.
- For example, Ontario’s requirement was removed in 2007 such that an individual no longer needs to be a permanent resident or a Canadian Citizen when entering the licensing process or for the purpose of being called to the Bar of Ontario (see The Law Society of Upper Canada’s Discussion, online: <https://www.lsuc.on.ca/FAQs> and Saskatchewan’s requirement was removed in 2010 (see discussion in (2010) 23:4 Benchers’ Digest 1 at 2)).
- Black, supra note 110.
- The mies in question required, respectively, that (1) “An active member who ordinarily resides in and carries on the practice of law within Alberta shall not enter into or continue any partnership, association or other arrangement for the joint practice of law in Alberta with anyone who is not an active member ordinarily resident in Alberta”; and (2): “No member shall be a partner in or associated for the practice of law with more than one law firm.” See Black, ibid at paras 7, 8.
- Black v Law Society of Alberta (1984), 57 AR 1 (QB) at para 38 [Black, QB].
- Ibid at para 147.
- Black v Law Society of Alberta 1 SCR 591 at paras 93 to 105.
- On this point, the trial judge declined to find any bad faith on the part of the Alberta Law Society, but noted at paragraph 35: “The debates of the benchers disclose that the issue of economic protectionism was clearly raised. There was additionally in argument, expressed and implied, that view that the benchers feared that the McCarthy firm in Toronto would take legal work away from residents of this province.” Black, QB, supra note 124.
- Black, supra note 110 at para 93.
- See discussion in Devlin & Cheng, supra note 1 at 248.
- See Federation of Law Societies of Canada, “National Mobility of the Legal Profession,” online: Federation of Law Societies of Canada
- As reported in Mark Orkin’s seminal text on legal ethics in 1957:
- Solicitation of business by a lawyer is considered to be professional misconduct. In particular, solicitation of business through the medium of advertising, whether direct or indirect, is forbidden.
While the rule as so stated may be considered absolute, in practice it appears to admit of some slight encroachments. An example is the use of name plates and business cards, where the primary purpose of identification does not exclude some element of advertising, in the sense of bringing the lawyer’s name to the attention of the public.
- Solicitation of business by a lawyer is considered to be professional misconduct. In particular, solicitation of business through the medium of advertising, whether direct or indirect, is forbidden.
- Mark Orkin, Legal Ethics: A Study of Professional Conduct (Toronto: Cartwright, 1957) at 180 .Â
- Ibid at 185. See also, the 1920 Canons of Legal Ethics (Ottawa: Canadian Bar Association, 1920), Cannon 5(3) which stated:
- The publication or circulation of ordinary simple business cards is not per se improper, but solicitation of business by circulars or advertisements or by personal communications or interviews not warranted by personal relations, is unprofessional. It is equally unprofessional to seek retainers through agents of any kind. Indirect advertisement for business by furnishing or inspiring newspaper comment concerning causes in which the lawyer has been or is connected, or concerning the marmer of their conduct, the magnitude of the interests involved, the importance of the lawyer’s position, and the like selfÂlaudations defy the traditions and lower the tone of the lawyer’s high calling and should not be tolerated. The best advertisement for a lawyer is the establishment of a well-merited reputation for personal capacity and fidelity to trust.Â
- Competition Bureau of Canada, supra note 32 at 28-29.
- Timothy R Muzondo & Bohumir Pazderka, Professional Licensing and Competition Policy: Effects of Licensing on Earnings and Rates-of-return Differentials (Ottawa: Minister of Supply and Services, 1979) at 127.Â
- For example, as reported in The Report of the Professional Organizations Committee (Toronto: Ministry of the Attorney General, 1980) at 194-195, in the late 1970s, the Law Society of Upper Canada introduced a program that permitted lawyers to advertise up to three preferred areas of practice in the Yellow Pages and other print media subject to certain pre-conditions. The Report also noted “recent rule changes in Manitoba, Alberta, and British Columbia now allow most forms of price advertising by lawyers.”
- Canada (Attorney General) v Law Society of British Columbia,  2 SCR 307.
- See, e.g., Re Law Society of Manitoba and Savino (1983), 1 DLR (4th) 285 (CA); Klein v Law Society of Upper Canada (1985), 50 OR (2d) 118 (Div Ct).
- As noted by Moore, supra note 28 at 316: “The Law Society of Upper Canada followed the trend, voting to withdraw most of its professional conduct restrictions on advertising and other forms of business-like competition. In September 1986, it abolished all limits on lawyers’ advertising except those of good taste, honesty, and verifiability.” In other words, “the regulatory scheme, which was formerly a general prohibition subject to expanding exceptions, was converted into a general authorization subject to qualifiers.” See Darryl Robinson, “Ethical Evolution: The Development of the Professional Conduct Handbook of the Law Society of Upper Canada” (1995) 29:2 Law Society Gazette 162 at 178-179.
- Rocket v Royal College of Dental Surgeons of Ontario, 2 SCR 232.
- Competition Bureau of Canada, supra note 32 at 72.
- See, e.g., Donalee Moulton, “Law societies’ advertising mies inhibit competition,” The Lawyers Weekly 28:9 (27 June 2008). See, also, the summary ofpost-2007 reforms as found inKimAlexanderÂCook, “Advertising, Competition and Restraint of Trade” in Adam M Dodek & Jeffrey G Hoskins, eds, Canadian Legal Practice, loose-leaf (consulted on 20 May 2012) (Markham: LexisNexis Canada, 2009), ch 5 at 5-5.
- R v Lawrie and Pointts (1987), 59 OR (2d) 161 (CA) [Pointts].
- Ibid at para 21.
- Paula Pevato, “Should Law Societies ‘Prosecute the Hell’ out of Independent Paralegal Firms” (1991) 7 JL& SocPol’y 215 at 215.
- Moore, supra note 28 at 317.
- Pevato, supra note 145 at 248.
- For a more detailed summary of these events, see Julia Bass & Paul Jonathan Saquil, “The Authorized Provision of Legal Services by Non-Lawyers: Paralegals and Others” in Adam M Dodek & Jeffrey G Hoskins eds, Canadian Legal Practice, loose-leaf ( consulted on 20 May 2012) (Markham: LexisNexis Canada, 2009), ch 13 at 13-2-13-12.
- Law Society (British Columbia) v Mangat, 2001 SCC 67,  3 SCR 113 [Mangat].
- Law Society of Upper Canada v Canada (Minister of Citizenship and Immigration), 2006 FC 1489, 4 FCR 132.
- Law Society of Upper Canada v Canada (Minister of Citizenship and Immigration), 2008 FCA 243,  2 FCR 466, leave to appeal to sec dismissed, 2008 CanLII 65720 (SCC).
- For further discussion on this point, see, e.g., Alice Woolley, “Imperfect Duty: Lawyers’ Obligation to Foster Access to Justice” (2007) 45:5 Alta L Rev 107; and Gillian Hadfield, “The Price of Law: How the Market for Lawyers Distorts the Justice System” (2000) 98 Mich L Rev 953.
- See, e.g., Glanc v O ‘Donohue & 0 ‘Donohue, 2008 ONCA 395, 90 OR (3d) 309.
- In Ontario, for example, this process is conducted by “assessment officers” appointed pursuant to the Courts of Justice Act, RSO 1990, c C 43, s 90. Similarly, in British Columbia, registrars of the British Columbia Superior Court are tasked with this work pursuant to the Legal Profession Act, SBC 1998, c 9, Part 8; and in Alberta, a “review officer” does this work (Alberta Rules of Court, Alta Reg 124/2010, s 10.9). One major exception to this general delegation of supervision over fees is in the area of class proceedings, where class counsel fees must be reviewed by the court in every case. For further discussion of this issue, see, e.g., Kirk M Baert & Jonathan Bida, “Fee Approval Hearings in Class Proceedings,” online: Koskie Minsky LLP
<https://www.kmlaw.ca/site_documents/Fee%20Approval%20Hearings%20-%20Clasâ€¦ _ l 8junl 0. pdf>.
- See, e.g., William P McKeown, “How the Conspiracy Provisions of the New Competition Law Affect the Professions and Services” (1977) 2 Can Bus LJ 4 at 21, reporting that, at the time, almost all counties in Ontario had “a solicitor’s conveyancing and general tariff or a suggested fee schedule for solicitors.”
- R v Waterloo Law Assn (1988), 21 CPR (3d) 528 (ON H Ct J) [R v Waterloo]; R v Kent County Law Assn,  OJ No 2965 (ON H Ct J) [R v Kent Counry]. For a summary of the cases, see also Calvin S Goldman, Director of Investigation and Research, Bureau of Competiton Policy, “The Competition Act and the Professions” (Notes for an Address by Calvin S Goldman, to the Canadian Bar Association (Ontario) Program on the Professions, Toronto, Ontario, 25 April 1989), online: CompetitionBnreau
- Waterloo Law Association v Canada (Attorney General) (1986), 58 OR (2d) 275 (H Ct J). As reported at paragraph 18 of the decision: “Although the Law Society [of Upper Canada] was notified of the proceedings and appeared for the argument of the applications, it [was] not a party to either proceeding and took no position.”
- Ibid at para 20. It should also be noted that Justice Eberle did qualify this passage somewhat in the next paragraph, acknowledging
- hat a lawyer or law association ought to be able to claim an exemption, in appropriate circumstances, in answer to a prosecution under the Competition Act, where the activities which give rise to the prosecution are activities required by the governing body of the profession acting within powers delegated to it by a valid provincial statute. I recognize alsoÂ that it may be sufficient if the activities are merely authorized, and not actually required.
- R v Law Waterloo, supra note 157; R v Kent County, supra note 157.
- This definition of a “conflict” is found in American Law Institute, Restatement of the Law, Third: The Law Governing Lawyers, vol 2 (St Paul, MN: American Law Institute, 2000) at 244-245 and was cited with approval by the Supreme Court of Canada inR v Neil, 2002 SCC 70 at para 31,  3 SCR 631 [R v Neil].
- The analysis in this section has greatly benefited from the careful parsing of these cases by other scholars and lawyers, including most notably, Adam Dodek (see, e.g. Adam M Dodek, “Conflicted Identities: The Battle over the Duty of Loyalty in Canada” (2011) 14:2 Legal Ethics 193) and Simon Chester (see, e.g. Simon Chester, The Conflicts Revolution: Martin V Gray and Fifteen Years of Change (HeenanBlaikie LLP, 2006)).
- Chester, supra note 162 at 14 .
- Martin v Gray, 3 SCR 1235.
- Ibid at para 47.
- Dodek, supra note 162 at 202.
- Martin v Gray, 3 SCR 1235 at para 21.
- Ibid at para 51.
- Dodek, supra note 162 at 201. See also, Cristin Sclnnitz, “S.C.C. creates tough new conflict of interest standards,” The Lawyers Weekly 10:34 (18 January 1991). It should be noted that the minority decision, authored by Justice Coty, advocated for an even stricter duty that would see an irrebutable inference that the knowledge of one member of a law firm constitutes knowledge of all members of the firm and rejected the suggestion that institutional devices might provide appropriate safeguards. This stricter test, argued the minority, was necessary to preserve public confidence in the administration of justice.
- CanadianBar Association Task Force on Conflict of Interest, Conflicts of Interest Disqualification: Martin v Gray and Screening Methods (Ottawa: Canadian Bar Association, 1993).
- Dodek, supra note 167 at 201.
- R v Neil, supra note 161 at para 1.
- Ibid at para 29 [emphasis in the original].
- Ibid at para 12.
- Dodek, supra note 162 at 203 .
- 3464920 Canada Inc v Strother, 2007 SCC 24, 2 SCR 177 [Strother].
- As stated atibid, paragraph 67:
- By acquiring a substantial and direct financial interest in one client (Sentinel) seeking to enter a veiy restricted market related to film production services in which another client (Monarch) previously had a major presence, Strother put his personal financial interest into conflict with his duty to Monarch. The conflict compromised Strother’s duty to ‘zealously’ represent Monarch’s interests (Neil, at para. 19), a delinquency compounded by his lack of ‘candour’ with Monarch ‘on matters relevant to the retainer’ (ibid), i.e. his own competing financial interest.
- Ibid at para 70.
- Ibid at para 145.
- Dodek, supra note 162 at 205. See, also, Anthony Duggan, “Solicitors’ Conflict of Interest and the Wider Fiduciary Question” (2007) 45:3 Can Bus LJ 414 at 417-420.
- Harvey L Morrison, “Conflicts of Interest and the Concept of Loyalty” (2008) 87: 3 Can Bar Rev 565 at 578.
- Alice Woolley, “Correspondent’s Report from Canada: Task Force on Conflicts of Interest” (2009) 12: 1 Legal Ethics 87 at 87.
- Ian Binnie, “Sondage apres sondage … quelques reflexions sur les conflits d’interets” (“Poll After Poll: A Few Thoughts about Conflicts of Interest”) edited version of a speech given at Les Journees Strasbourgeoises, Strasbourg, France (4 July 2008). Forfurther discussion of this incident, see Dodek, supra note 162 at 209-211.
- Dodek, supra note 162 at 195.
- 2013 sec 39.
- Ibid at para. 8.
- Specifically, the Court clarified that: (1) the rule applies where the immediate legal interests of clients are directly adverse; (2) it does not apply to condone tactical abuses; and (3) it does not apply in circumstance where it is unreasonable to expect that the lawyer will not concurrently represent adverse parties in unrelated legal matters (ibid at para 32).
- In the case of lawyer conflicts of interests, it is important to note that the legal profession has not spoken with one voice. Although the CBA has been critical of the bright line rule, the Federation of Law Societies has aligned itself with the Supreme Court jurisprudence. For further discussion, see Dodek, “Conflicted Identities,” supra note 162 at 211-213 and see, also, Alice Woolley, “Problem solved? Assessing the Supreme Court’s Latest Statement on the Law Governing Conflicts of Interest” Ablawg.ca, 2 Augnst 2013, online: <https://ablawg.ca/2013/08/02/problem-solved-assessing-theÂsupreme-courts-latest-statement-on-the-law-goveruing-conflicts-of-interest/>.
- R v Cunningham, 2010 SCC 10, 1 SCR 331 [Cunningham].
- Ibid at para 1.
- Ibid at para 49.
- Annalise Acom, “Jumping Ship: R v Cunningham and the Lawyer’s Right to Withdraw” (2011) 44 UBC L Rev 381 at 381-383.
- See, e.g., Cristin Schmitz, “Conrts can order lawyers to work for free,” The Lawyers Weekly 29:45 (9 April 2010); and Janice Tibbetts, “Lawyers can’t dump deadbeat clients, top court mies,” Canwest News Service 13:776 (26 March 2010).
- Cunningham v Lilies, 2008 YKCA 7, 59 CR (6th) 49.
- Ibid at para 25.
- Supra note 190 at para 35 .
- See, e.g., Lameman vA!berta, 2012 ABCA 59, 522 AR 140.
- It should be noted that one area largely unexplored in this article is the judicial regulation of lawyers in the criminal law domain (for example, the courts’ treatment of ineffective assistance of counsel claims made against criminal defence counsel and/or abuse of process or malicious prosecution claims against Crown counsel). This is an area ripe for further investigation and, indeed, another Canadian legal ethics scholar, Micah Rankin, has begun work in this area and is drafting an article on the topic of “The Court’s Role in Regulating Lawyers in Criminal Proceedings.”
- Take for example, the Final Report to Convocation of the Law Society of Upper Canada Task Force on Independence that states that the independence of the bar requires, in part, that lawyers “remain free of external manipulation, state interference or ulterior influence in performing his or her duties” (23 November 2006) at 11, online: The Law Society of Upper Canada <https://www.lsuc.on.ca/media/convnov2306 _taskforce.pdf>.
- Legal Services Act 2007 (UK), c 29.Â
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