Driving to the barn this weekend, I turned on US National Public Radio and found myself listening to a Freakonomics episode about nurse-practitioners.

The longer I listened to this discussion of the role of nurse-practitioners in the US – which touched on the general antipathy of the American Medical Association towards nurse-practitioners, and the debate over who should decide their scope of practice – the more I thought of Canadian paralegals and lawyers.

There was so much similarity in the questions being asked, including:

  • How should the appropriate knowledge and skills required for nurse-practitioners to work autonomously (i.e. without the supervision of a doctor) be determined? Should nurse-practitioners take on some functions previously limited to doctors (e.g. prescribing authority)?
  • Who should make these decisions? Specifically, how much power should doctors have to license and effectively control the practice of nurse-practitioners? Is there a financial self-interest in doctors maintaining control of the majority of medical functions? [1]
  • Can a model of doctor supervision of nurse-practitioners be replaced by team collaboration norms typical in a health care setting?
  • Would more nurse-practitioners help alleviate the crisis in access to primary health care in the US?

Sound like lawyers and paralegals in Canada? Read on…

  1. Matching training and competence to scope of practice

There is no question that nurse-practitioners are not trained for as long or as rigorously as doctors. Just like paralegals compared with lawyers. There is no argument over that.

But making the obvious statement that nurse-practitioners are not doctors is a straw man response to the debate. It simply serves to close down the conversation prematurely.

Isn’t the right question what level of skill and knowledge is necessary for which medical functions, what the medical field calls scope of practice?  Put another way, can a nurse-practitioner be trained to a high level of competence to carry out certain types of diagnostic and treatment techniques? This debate is far from settled in the US, and there are many variations state-by-state.

Can a paralegal be trained to competently discharge some legal tasks? Apparently yes. Some functions relating to specific areas of practice (e.g. provincial offences, small claims, some immigration work in Ontario) are already carried out by paralegals without the supervision of a lawyer, and further tasks (e.g. drafting family court documents) are regularly delegated to “legal assistants” under the supervision of a lawyer.

The outstanding question – and the most pertinent one – is about scope of practice.  

  1. Who should decide on scope of practice?

Who should determine what functions nurse-practitioners should take on that have previously been limited to doctors? This is not the same question as who should assess competence in carrying out those functions, which obviously must be a specialist accreditation body.

A fascinating part of the podcast (minutes 26-30) is the discussion about whether doctors in the US should have the power to license and control the services of nurse-practitioners.

As economist Uwe Reinhart puts it, somewhat dramatically,

“It’s like putting the Mafia in charge of the New York Police Department. Why would you have doctors dominating the licensing board for nurses?”

Where nurse-practitioners are licensed in the US, their scope of practice is determined by state laws. Medical Associations representing doctors often lobby state legislators regarding nurse-practitioner scope of practice, sometimes successfully thwarting healthcare advances (for example in California, as described in the podcast). The podcast reports that the American Medical Association is not as powerful as it once was, though it still has great influence. But they are not the decision-makers.

In Canada, the licensing of paralegals and the determination of their scope of practice has been left to the provincial law societies (I wrote a blog in January 2017 describing the status quo). In the policy and decision-making process, the law societies determine scope of practice, including what knowledge and skills are needed to practise in those particular areas, as well as provide oversight of accreditation.

This is the actualisation of professional self-regulation for the legal profession. But does it raise a conflict of interest? Lawyers are financially threatened by paralegals offering some of “their” services at a lower cost.

  1. Should nurse-practitioners / paralegals have autonomy in some functions or do they need the supervision of a doctor/ lawyer?

Again, I was struck by the similarities of the debate between nurse-practitioners in the US (we see similar debates in Canada over nurse-practitioner supervision) and paralegals in Canada.

Many people have pointed out that the problem with the supervision model is that it is significantly less efficient in terms of providing services. A profession without some level of autonomous decision-making is also a less attractive career option.

One approach is to replace doctor supervision with the type of team collaboration norms – sharing information, seeking the input of others – that are typical in a health care setting among professionals.

This might be an idea worth exploring in the legal system, where firms include both lawyers and paralegals. It suggests that a “case manager” might be necessary to assess and then direct client “traffic” – which cases go to a paralegal, which to a lawyer. This is very different from giving the decision over delegation to lawyers (remind yourself what happened with BC’s “designated paralegal” representation pilot…)

A case manager model could also help meet the challenge of ensuring paralegals call in lawyers for matters that become more complex than they are competent to deal with.

  1. Would more paralegals help in alleviating the Access to Justice crisis?

This is the same question that is being asked in the US regarding access to health care (with more people insured since the Affordable Care Act, demand for primary health care has been steadily expanding).

Given the relatively recent introduction of nurse-practitioners into the health care market, research is still developing on this question, but there are already some studies that suggest that nurse-practitioner care is more cost-efficient for the health care system, yet provides the same health outcomes.

In contrast, in the absence of any research in Canada we are still arguing over hypotheticals in which lawyers insist that they are “sure” that a paralegal will not be less expensive than retaining a lawyer.

In a less-than-ideal world…

If all (medical / legal) services were free, we would probably all choose a specialist over a generalist. But that is not the world we live in. Instead we live in a world where the majority of Canadians cannot afford a lawyer.

The question for paralegal reform in Canada is not whether a lawyer has more training and knowledge than a paralegal. It is not even whether a lawyer is always needed to deal with every legal problem – because this is not the present reality.

The real question is how many more legal functions can paralegals be trained to competently take on?

And the question behind that question: are we content to leave this answer to the law societies, who seem only able to see paralegals as competition?

 

[1] In the US most medical services are paid for (using indemnity insurance) by most users, making this a better comparator for legal services in Canada than our public health care model.

17 thoughts on “Conflict of Interest: Should Lawyers Decide Who Provides Legal Services?

  1. Twechar says:

    Fantastic parallel Julie…two things came to mind as I read your article;

    1. Tribalism

    2. A line out of John Lennon’s song “Working Class Hero” …”they hate you when your clever, but despise a fool”

  2. Twechar says:

    Correction to my previous post on John Lennon lyrics should have said: “They hate if you’re clever and despise a fool” from “Working Class Hero”

  3. sandra olson says:

    I would love to have this sort of service provided. I have an expert evidence document that I have been trying to get before the court now for a few years. despite approaching 2 lawyers, even though they both said the evidence was very good,, no one will do what I am asking, simply put together the correct documents to present this evidence to the court. since the lawyers seem determined to avoid getting this into the court, I would love to get help from any source willing to do this. a paralegal might just be the answer.

    1. Julie Macfarlane says:

      Great piece Malcolm – I love this line “It is ironic that client conflicts are treated so seriously while the inherent conflict in self-regulation is mostly ignored”

    2. Chris Budgell says:

      I recall reading your August 28 slaw article at the time. It was precisely the kind of article to which I would have attempted to contribute a comment, but if I did on that occasion it never got posted.
      .
      Former LSBC president Turriff’s appearance would have been enough to encourage me to comment. I have copies (including one of those that were printed for distribution) of his 2014 brochure, “Why We Need Independent Lawyers”.
      .
      I have a PDF copy because it was accessible on his former law firm’s website, from which it was subsequently removed. It was clearly intended as a PR initiative, but I think posterity will judge it to be a classic example of how far some lawyers are prepared to go to promote the fiction about serving the public interest.
      .
      You also mentioned “public benchers”. Some of those who have served in that capacity at the LSBC have heard from me. One in particular – the president of Coast Mountain Bus Company – received a letter from me at his workplace.
      .
      Prior to last month there were just two appointed benchers remaining at the LSBC (attributable perhaps to last year’s change of government). Last month they appointed four new ones, listed here – https://www.lawsociety.bc.ca/about-us/benchers/.
      .
      Looking at their profiles I don’t see any potential SRLs.

    3. P A Rempel says:

      I am also struck by the line that ‘client conflicts are treated seriously’ because that has not been my experience. I found the Law Society of Ontario/ Upper Canada complaint system painfully slow, heavily skewed in favour of lawyers’ interests and designed to shield its processes from external scrutiny.

      The ‘client conflict’ complaint I made was about the actions of lawyer for my late uncle (UW). My complaint was lodged with the LSUC in February 2015. It was promptly transferred to the Investigations section which spent 2 years [not] reading it. After many nagging emails and almost 3 years in the system it went to a Regulatory meeting. The Committee found that the lawyer had not complied with the Rules for a joint retainer and acted where there were actual conflicting interests. It also found that she had failed to properly ascertain UW’s capacity and that she had acted improperly in allowing monies from one estate to be used for the expenses of another. They concluded that the conduct was not likely to occur again; digital.ontarioreports.ca/ontarioreports/20171215?pg=83.

      The report gives considerably more detail than most Regulatory Meeting findings but is still very vague. Let me flesh out the story.

      UW and his wife (AB) were a childless couple. They had been married 49+ years when AB was diagnosed with terminal cancer. Shortly after this during a visit by relatives, the lawyer drew up new Wills. UW left the bulk of his estate (~$200,000) to his dying wife. AB placed all her assets (also ~$200,000) into a spousal trust with the 3 nieces as residual beneficiaries. UW was to receive the interest from the trust which was less than $200 for the year UW survived his wife. The executors of both Wills were the visiting niece and her husband. Those Wills sounded VERY unequal to me.
      The Law Society review agreed that this was not joint retainer material.

      AB died 6 months later. When the lawyer drew up the Executors’ paperwork, she also drafted new Powers of Attorney for UW. 6 months earlier UW had only wanted his wife as Power of Attorney but now he appointed the relatives who were also AB’s Executors. This appointment effectively precluded any challenge to AB’s Will, a matter on which I felt UW should have received advice. During this meeting UW also changed his Will increasing the visiting relatives share of his estate from 1/3 to 1/2. All this legal paperwork was done for the princely sum of $120.
      The Law Society advised me that these actions were not a conflict of interest and there was no need to advise UW about whether he could challenge his wife’s Will. Hmmm.

      And then 9 months later, UW was assessed as having advanced Alzheimer’s. UW was childlike but otherwise fit and healthy. He was still expressing his wish to remain in his home; however, his PoAs wanted him expedited into the first available LTC bed. Without bothering to contact UW to determine if he could express wishes on Personal Care matters, the lawyer assisted the PoAs in this process. At this point, my sister and I commenced legal action to assume UW’s Personal Care PoA and we managed to keep UW at home. We spent $3,000 on his food and medicine costs, a further $14,000 setting the house up with live-in Carers on top of which there were also our legal bills. This was all our own money. The PoAs spent $4,000 of UW’s money paying the lawyer to counter our action and trying to have UW expedited into LTC. Throughout this process, the lawyer claimed that she had copious notes on UW’s wishes for his Powers of Attorney- but never bothered to contact him.
      The Law Society concluded that the lawyer HADN’T taken adequate steps to determine UW’s capacity; however, they didn’t see any conflict of interest in the way the lawyer acted directly against her client’s expressed wishes in favour of the PoAs wishes. Hmmm. Hmmm.

      Four months after this UW died following a massive stroke, and the next round of problem behaviours commenced. The lawyer followed the Trustees’ instructions to pay UW’s estate expenses from AB’s estate. This enriched the Trustees since they received 1/3 of AB’s estate but 1/2 of UW’s estate; $60,000+ of AB’s estate funds were used in this fashion. This was more than the Trustees’ share of AB’s estate and $25,000+ of this sum was used to pay for LITIGATION OPPOSING MY MOTION TO PASS ACCOUNTS!!
      The Law Society stated that the trust disbursements were inappropriate and that the action exposed the Trustees, the lawyer and her firm to risk. Hmmm. No comment on unjust enrichment/misappropriating monies to thwart legals actions about unjust enrichment/misappropriating monies. Hmmm. Hmmm.

      I view the findings as 3 lashes with a wet noodle. There is no concern about elder exploitation and the potential harm to a broader public. Even the misuse of funds focuses on the potential harm to the lawyer rather than the public. It’s all about lawyers.

      So, to go back to the original Blog topic- Will paralegals get fair treatment if law societies decide which legal functions they can undertake? I think there are 2 chances of that happening: Fat and Slim.

  4. Bradley Wright says:

    You state, “we live in a world where the majority of Canadians cannot afford a lawyer”. The mistake in that assertion arises from lumping all lawyers and legal services into one basket. It is a mistake that commentators have been making seemingly forever. And it is not true. The vast majority of Canadians can afford a lawyer for a wide range of legal services including without limitation real estate transactions, wills, codicils, powers of attorney, probating estates, incorporations, business deals, most domestic contracts, notarizations, commissionings, simmering clients down who are mad at their neighbours, consultations, and so on. The cost of the vast majority of those services is low, ranging from free, to $20 to $100 to $200 to $700 to $900 to one or two thousand dollars. What is not affordable is the Ruinous Time and Cost of Litigation which is just about the only area of legal services that is too often out of reach for all but the wealthy, the unreasonable or the legally-aided. The RTCL is the only barrier to access to justice worth the time and effort to deal with. It is caused mainly by the time it takes to process a litigation matter which in turn is caused by the government’s insistence on maintaining a highly time-consuming system, and by far too many litigation lawyers chasing too few clients per lawyer resulting in both churning of litigation files and the issuance of claims for every perceived slight or injury. The only answer is to reduce the time it takes to resolve litigation matters. Adding thousands more legal service providers, whether from the bloated up, fail no one law schools or from expanding the scope of paralegals who will emerge from bloated up, fail no one paralegal schools is not only not the answer, it is an exacerbation of the problem.

    In future, please be more careful and specific when describing the problem. Blanket and demonstrably false statements that the majority of Canadians cannot afford a lawyer do not help the debate, they hinder it. A better statement would be along the lines of “while many very important legal services (real estate, wills & estates, among others) are eminently affordable, most Canadians cannot afford the cost of engaging in the litigation system where the average cost to take a matter to trial is $40,000 per litigant”. Thank you.

    1. Julie Macfarlane says:

      Dear Bradley,
      Thank you for your comment. You are right that some lawyers offer fixed fee services for transactional issues and at NSRLP we have been encouraging that via our National Directory of Professionals Assisting SRLs. In addition, many members of the public have taken the time to educate themselves on these types of legal services and are vastly more empowered when they do shop for such services.
      However the vast majority of SRLs whom we encounter are engaged in unfortunately acrimonious litigation, and they can only afford to engage lawyers for short periods of time and end up representing themselves (more than half the SRLs in our studies began with a lawyer but ran out of money). Moreover, if you think my statement is controversial I would refer you to similar statements and conclusions in official reports in other jurisdictions including England and Wales and the US.
      Perhaps we are focusing on a different problem.
      Julie

  5. Andy Szabo says:

    TO: Bradley Wright

    “It is trite law” to say that we are discussing ALL this from the LITIGATION view point….

    Real Estate – no one is going to feel sorry for anyone who cannot afford a lawyer for the biggest purchase of their life (in most cases)
    Wills & Estates – well we are still talking affluent people

    Clearly we are talking about cases where people will lose their kids, their freedom, their reputation but they are unable to afford a lawyer – most have no choice
    NO choice is what we should be talking about. NOT about how affordable a few thousand dollars is – some people just do NOT have it. Some people go without – new shoes, new clothes, new cars, new appliances, new glasses, new teeth, dental work, a night out, new presents – the list is long, including affordable housing

    So no they are not complaining, and we are not talking about not affording a lawyer for real estate, wills, & estates

  6. Bradley Wright says:

    Hi Julie, I did not talk about lawyers offering fixed fees for transactional issues. I talked about small firm solicitors who are doing real estate deals, wills, powers of attorney, incorporations, etc., etc., for very affordable fees (some of which may be fixed, and some of which are not, but virtually 100% of which are eminently affordable). What I rail against is the constant lumping of all lawyers under the accusation that “most Canadians cannot afford a lawyer”. The easily demonstrated reality is that most Canadians can certainly and easily afford the cost of the multitude of legal services delivered cost-effectively by small firm solicitors. Such services are accessed many thousands of times a day across Ontario.

    What is not affordable are the services required to deal with dispute resolution – by far the real barrier to access to justice. Commentators have to be more careful about which area(s) of law they are talking about, and stop making bald statements to the public that all lawyer services are unaffordable when that is patent nonsense. The legal cost of a well-done real estate sale is about the cost of a basic stove. It is a fraction, not just of the real estate commission, but of the HST on the commission. The legal cost of a well-done real estate purchase is about the cost of a basic fridge, and a fraction of the usual land transfer tax. There are 8,000 lawyers doing real estate in Ontario. It is a viciously competitive market where lawyers who practice properly (meet the clients, do full title searches, do not cut corners, etc.) have to complete with “lawyers” who see real estate as a commodity (even though real estate negligence is routinely either first or second as a claims generator for LawPRO), don’t care much about the integrity of the title system, never meet the clients, quote low to get the client but then jack up the cost at closing, and have delusionally bought the seductive foolishness that title insurance is their panacea and savior. The field is so competitive, it does not need the NSRLP telling us to use fixed fees. And you don’t.

    What the NSRLP does do, inter alia, is encourage barristers to offer fixed fees for litigation work. Fixed (non-contingent) fees for litigation rarely work. Either the lawyer loses interest, in whole or in part, after the fixed fee is exhausted or a new fixed fee for the next phase of the work is entered into (and that is no different from a series of retainers). The ONLY truly effective way to bring down the Ruinous Time and Cost of Litigation is to reduce the time it takes to resolve disputes, time being money. If the resolution time were cut in half, the cost would be too. Lawyers could handle twice as many files for half the money per file but the same annual income. The reduced cost would make many more files affordable for many many more litigants.

    The cost of litigation files is so high that lawyers prefer to glom onto clients who can pay those bills; hence, the rise in self-reps. A contributing factor to the problem is the explosion in the number of lawyers chasing a shrinking number of clients per capita.

    Although these fora are terrific as a way for public-spirited commentators to share thoughts and experiences, there is insufficient room to delve down into the minutiae. Rest assured that the only way to achieve the goal of more affordable barrister services is to reduce the time. More e-filing won’t do it; more pamphlets won’t do it; more legal aid money from the most indebted sub-national government won’t do it (there will never, ever be enough); re-purposing the Shirley Dennison Award won’t do it; more use of circles of healing won’t do it (but they work well in the Indigenous community, and are therefore greatly to be encouraged, but they are only 4% of the population).

    Julie, you also said “if you think my statement is controversial I would refer you to similar statements and conclusions in official reports in other jurisdictions including England and Wales and the US. Perhaps we are focusing on a different problem.” If similar bald statements that all legal services are unaffordable are being made there, then the reports in those other jurisdictions are making the same mistake of lumping almost always very affordable small-firm solicitor services in with far too-often unaffordable barrister services. That is the persistent and extremely annoying problem I have been railing against (for years as it happens). Please do focus on the problem you are working so commendably hard to redress, but describe it accurately and please stop tarnishing small firm solicitors with a stain that does not apply to them.

    Lastly, I will ask you and others to understand that solicitors engage in prevention law and barristers in cure law. An ounce of prevention is worth a pound of cure. That’s a ratio of 1 to 16. Indeed, in law, the ratio is more like 1 to 40. Concentrate on the 40 and stop tarnishing the 1 with careless use of language. Thank you.

    Andy Szabo says that for “Wills & Estates – well we are still taking affluent people”. Unless he includes low income people among the affluent, his statement is incorrect. I do countless will and powers of attorney for people who are certainly not affluent as that word is commonly applied. Indeed, the lower the value of your estate, the more important it is to have a well drafted will. If your estate is worth $50,000 and you either do not have a will or you were penny-wise and pound-foolish and used a kit or some online or homemade mistake ridden facsimile, and if it costs $10,000 in legal fees to deal with the mess that resulted (a case with those very numbers that I watched an older lawyer handle very well), then the estate (in that case, the two teenage heirs) lost 20% (!) of the value in legal costs. If your estate is worth $2,000,000 and you lose $10,000 in legal fees due to poor, non-lawyer drafting, who really cares? Of course, if that estate ended up in the court system, the legal fees would likely be in excess, and maybe well in excess, of $40,000 ($40,000 being just the average cost of taking something to trial).

  7. Judy Gayton says:

    An apt analogy.

    I’ve read that most primary health care can and already is provided by nurses and other health care providers. One of the things drs struggle to do well, is provide accurate, timely diagnosis’s. Lag time between symptoms and dx is typically 5 to 7 years, the treatments of which, is pretty standard fair: this drug or that surgery. Intellectual technology is desperately needed to do the job that dr’s are clearly struggling to get right as misdiagnosis is one of the leading reasons for initiating a law suit.

    In the same vein, lawyers state that despite historical case law, judges are wild cards that make predicting case outcomes far more difficult. In the case of the law, this is likely a good thing that helps society evolve but in general, it seems save to say that overall, the public health and safety would be more secure if and when IT is used to augment both medical diagnosis and legal rulings.

  8. Judy Gayton says:

    WHEN THE MONEY RUNS OUT
    En masse, lawyers fail to provide clients with an upfront case cost analysis, equivalent to legal informed consent in medical services
    Lawyer’s KNOW how much money and how many years it will cost client’s to settle or get to trial and failing to inform them of this is a moral hazard and negligent advocacy for lawyers not to warn clients that when their money runs out, they’ll be forced to SR or abandon their own legal interests
    It seems ironic to call providing services to get clients through only as much justice as they can afford to buy, “unbundled” services, when in fact ALL legal services are “unbundled” because one only gets as much justice as they can afford. No money, no justice.
    Despite the SCC statement to the contrary, justice IS for sale
    The SCC states that court fees that block access to our own publicly funded courts including lawyers fees are unconstitutional
    Weather paid for by legal aid or a clients life savings, failing to warn client’s that they do not have the funds to complete an action allows lawyers to unjustly enrich themselves at the clients expense.
    The Code clearly states lawyers cannot refuse a meritorious case for lack of ability to pay and dumping clients without a right to a remedy because they ran out of money is a breach of the Code.
    Legal Aid studies mapped out the KNOWN justicable problems that unmet legal problems cause the public.
    One unmet legal problem begets numerous legal problems and can easily cause a persons life to spiral out of control leaving clients endlessly vexed.
    Lawyers continue business as usual while clients are lost in a legal system that already KNOWS the devastating costs they will face
    Everyone benefits EXCEPT clients
    As self-regulated systems dr’s and lawyers are largely insulated from liability for public harm they cause.
    Because the system benefits it is both slow and adverse to improving substandard services
    The risks of using the public court system constitutes a serious health issue because a persons financial stability is directly related to the quality of services they can access.
    The strongest determinant of health over and above access to health care, is income. Poverty is a social crime that literally kills people
    Based on the dismal results most SRL suffer, when lawyers are allowed to open a clients case and leave them hemorrhaging in the hallowed halls trying to bandage their own systemically inflicted wounds because they don’t have access to funding, we should probably be pulling the code red alarm and filing it as legal malpractice.
    Canadian’s don’t believe in letting people die simply because they cannot afford medical services. Nor should we allow people to knowingly suffer more harm because they can’t afford legal services either.

  9. Bradley Wright says:

    Julie, you say, “Great piece Malcolm – I love this line “It is ironic that client conflicts are treated so seriously while the inherent conflict in self-regulation is mostly ignored””

    In this short essay, I will posit that there are four descriptions for the regulation of legal services:
    1. Good self-regulation
    2. Good government regulation
    3. Bad self-regulation
    4. Bad government regulation

    We all want good regulation. In 2009, we dumbed down our self-regulation. Now, there is a movement afoot to dumb it down even further by throwing away demonstrably, and proven, valuable assets or by reducing the number of minds to be allowed to be brought to bear on the issues, or both.

    Nevertheless, even dumbed down self-regulation is preferable to government regulation. I say that bad self-regulation (provided it is not too bad and turns out only to be temporarily bad) is preferable even to good government regulation and nothing but nothing is worse than bad government regulation. The legal profession is an indispensible bulwark of democracy. It alone has sufficient independence and power to stand up to government excess. Governments exist to expand their scope and reach. Periodic tossings at election time of over-stepping governments help to constrain those tendencies, but, as Churchill said, the price of democracy is eternal vigilance. Journalism has an important role to play, but the legal profession is by far the more important.

    The danger is when, through bad, woolly, negligent, calumnous or somnolent leadership, the self-regulator loses its way thereby giving a government its chance to swoop in and take over – an irreversible step that worsens over time. We in Canada are living in an historical blink of an eye where we can be reasonably confident that our governments will not turn totalitarian in the foreseeable future. But we are not better human beings than Russians or Venezuelans. Our advantage, borne of geography, British traditions (themselves long to evolve and hard-won), and lucky accidents, has been our system. A cornerstone of our system, from Britain, is the hard-won independence of the bar. Having the bar regulated by government would be a retrograde step of the highest magnitude .

    (Having the bar owned by non-lawyers would have been another retrograde step here, but this worst idea in 1,000 years was recently rejected, four years late but not too late (we hope). Tragically, this worst idea has been given a foothold in England and Australia thanks to ignorant and monumental blunders of incalculable consequence undertaken there, but that’s a 500 page essay for another time.)

    If there is an inherent conflict in self-regulation, it is a society-saving, democracy-saving conflict, and one that we must guard with our intellectual lives. The best way to do that is to ensure as far as humanly possible that we self-regulate in the public interest. We have lay benchers. We have open Convocations and public transcripts except where in camera discussion is compelled. We have public-spirited benchers who, in my knowledge of Convocation going back several decades, have always been in the very large majority to the point where obviously self-interested benchers, playing to what they see as their constituents, hold little sway among their colleagues.

    It is not that benchers ignore the conflict; it is that we do so seriously take our public mandate that the conflict rarely if ever arises. I say that the legal profession should regard self-regulation as a fragile, but that the government should regard it as a sacrosanct. Only by regarding self-regulation as fragile can we remain sufficiently vigilant and alert, and increase the odds of government regarding it as sacrosanct. That means doing our best to ensure description 1: Good self-regulation.

    The worst conflict of all would the conflict that the Government would find itself mired in were it to take over regulation of the greatest bulwark against government excess ever devised – the independent bar.

  10. Bradley Wright says:

    I should have added that the problem with even good government regulation (even if brought in on a supposedly temporary basis to deal with a temporary span of bad self-regulation) is that it would not stay good over the arc of history. It would slowly but surely transmogrify into a puppet regulator. Over time, nothing would be so calculated as to erode public confidence in the independence of the legal profession as where all or even a controlling majority of the regulators are government appointees. Such a regulatory model would be expected of totalitarian countries, not vibrant democracies.

  11. Bradley Wright says:

    By the way, if you are unsure whether anti-democratic, totalitarian impulses exist in Canada, check out the Law Society of Ontario’s Statement of Principles, and the federal Liberal* Party’s insistence that, to access summer job funds paid for by all tax taxpayers, applicants must agree in writing with the Prime Minister’s personal views on women’s rights. As it happens, I agree with the Prime Minister’s desire (though not all his means) to enhance women’s rights, but I don’t agree that I should be despotically forced by to agree when applying for summer job funding.

    *It is no longer a liberal party except in misleading name. What we now have is two NDP parties both of which believe that you can tax your way to prosperity, borrow your way out of debt, and increase your tax base by driving out of the country well over 100 billion dollars of real** job-creating investment and thousands of brains. The third party is centrist, but harmed electorally by a farther right element intent on living in the past. If only the Blue Liberals and the Red Tories would get together….

    **The hiring of more government workers is not true job creation as the money must first be taxed*** out of the private sector at a cost of private sector jobs (if you don’t agree with that, try doubling the taxes on the private sector and see what happens to jobs). Given the over-remuneration of most government jobs, that means that excessive government “job creation” results in a net loss of total jobs as more than the cost of an equivalent private sector job must be taxed in order to fund the government job. ***government borrowing is merely deferred taxes

  12. Bradley Wright says:

    Lastly, I also agree with the good sense of embracing diversity. I do not agree with a mandated statement of principles. For one thing, it is a short step from a regulator or government forcing us to sign statements we agree with to forcing us to sign statements we disagree with, in order to access or continue with a benefit. In the case of the Illiberal Party, that is accessing summer job funds. In the case of the LSO, that could be the right to practise, or the right to practise without the stain of an unfair discipline record. Freedom of speech is the most important freedom there is. It is the one that identifies, articulates and, above all, protects all the other freedoms.

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