The second (and final) panel session has begun. The first panellist is Michael Trebilcock, professor and Chair of Law and Economics at the Faculty of Law, University of Toronto. He is discussing the twin rationales (from an economics perspective) for professional regulation: asymmetric information and negative externalities; the former being the chief justification for regulation of lawyers. He notes (in my view entirely correctly) that contrary to conventional wisdom, in many sectors of the profession information failures (and concomitant quality assurance issues) are not a big problem, for example sophisticated business clients and clients rural communities. Information failures are likely most severe in the context of small firms and “small” clients.
How then do we address these problems? First, we can regulate the “inputs” to the profession, e.g., entrance and continuing education requirements. The evidence, however, is that these kinds restrictions do very little to ensure quality and may in fact simply increase costs. More promising are programs designed to isolate deficient practitioners and subject them to targeted re-training.
Second, we can regulate outputs, i.e. the quality of service actually received by clients. He is sceptical that the tort system is of much use here; the very information asymmetries at work are likely to thwart accountability through tort liability. Professional standard setting and discipline may be more helpful. Historically this has focussed on intentional and grossly negligent misconduct rather than proactive identification of marginally competent practitioners and high-risk sectors of the market. In these contexts auditing and practice review programs may actually make a difference.
Unfortunately, Prof. Trebilcock did not have time to elaborate on his view of the debate on self-regulation v. state or co-regulation, except to say that adventures of the latter sort are likely to be disastrous. He later adds (in response to a question) that incremental reforms (e.g. greater lay participation, reviews by ombudsmen) within the conventional self-government model may improve things.
The second panellist, Richard Devlin, is Professor and Associate Dean at Dalhousie Law School in Halifax. He is critical of the reluctance of the profession (and governments) in Canada to seriously consider greater external scrutiny of the profession. He points out numerous examples of regulatory failure in Canada and notes that most other comparable jurisdictions have responded to such failures by incorporating greater external oversight into their regulatory frameworks.
He thus advocates a “hybrid” or “calibrated” system of regulation. One iteration is to separate the rule-making function (maintained by the law society) from the disciplinary function (taken over by the state). Another is to divide responsibility between ethical and competence complaints (which body deals with which is not specified). Yet another is to establish a state agency to oversee the law society as it exercises its traditional suite of functions. Lastly, one could have a state regulator take over the law society’s function, but delegate certain tasks back to it. Prof. Devlin suggests the striking of a task force to investigate these options.
The third panellist is Duncan Webb, professor at the School of Law at the University of Canterbury in Christchurch, New Zealand. He answers “No” to the question posed by his paper “Are Lawyers Regulatable?” Why? For starters, because lawyers are by training disrespectul of rules and (by virtue of human nature?) hopelessly self-interested. Additionally, most of lawyers' work is non-transparent, and fellow lawyers have little incentive to report misconduct, so it is easy for lawyers to shape rules in their own (as opposed to their clients') interests. Next, the rules themselves are either vague or arbitrary. Like Prof. Devlin, he expressed surprise that there has been little call for external oversight in Canada, in contrast to the rest of the English-speaking world. He notes, however, that even in places where governments are more involved, they delegate most responsibilities to the profession. On the question of discipline, he notes that severe sanctions are typically imposed only when: (i) there is egregious conduct, or (ii) the lawyer is from non-dominant sector of the profession. Lastly, he asserts (in contrast to Devlin), that external oversight is unlikely to make much of a difference, as overseerers are likely to defer to the professions' own assessments of competence, quality, and conduct.
Moderator John Law, Professor at the University of Alberta Faculty of Law, notes that for many lawyers, especially in Canada, self-regulation is inherent in the notion of professionalism. This is belied by the experience in comparable jurisdictions referred to by each of the other panellists. He predicts, however, that this experience, as well as increasing public scepticism about our major public institutions, will eventually require Canadian lawyers to respond seriously to the challenge that self-regulation does not serve the public interest. Specifically, he argues that the profession's focus on conduct and competence appears misplaced in light of the public's concerns over access to and the affordability of basic legal services.
A question is posed to the panel: "if things were so bad with Canadian profession, wouldn't there be greater public pressure for reform?" This question (a very good one) is not answered, unfortunately.
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