In the midst of the media storm over the controversial plans to open a law school at Trinity Western University, Kevin Yee discusses the role of the BC Law Society itself.
We’ve heard a lot about the Law Society of B.C. lately amongst the uproar over Trinity Western University’s attempt to open a law school. Law societies must decide if they will recognize the school so that its graduates can practise law in their jurisdictions.
The fervor stems from the covenant that the Christian faith-based school would require its law students to enter. This covenant is guided by the values it wishes to promote but these fly in the face of fundamental LGBT rights. We have the charter right to freedom of religion at odds with the charter right to equality.
So, should the law society be endorsing a law school with such requirements? Some say yes—a law society’s refusal would mean imposing its own views on a school and would result in discriminating against individual students who hold TWU’s values. Last week, we, the Reasonable Doubt writers, voiced our collective opposition to TWU’s proposed law school. In doing so, we spoke out against the accreditation itself of a law school with institutionalized prejudices.
This story has legs to it. It is a fluid situation: the B.C. Law Society’s board of governors (called “benchers”) voted to recognize TWU’s law school on April 11. In less than two weeks, Victoria lawyer Michael Mulligan compiled and submitted over 1,500 signatures of lawyers to force a general meeting of the law society. This is set for June 10. And this week, the news reported that TWU was taking legal action against the law societies.
It’s clear from reading the comments on last week’s article that this story raises important questions and concerns. Several betrayed a deep suspicion of the Law Society of B.C. What is the law society? Why do they get such a say on this decision? What function does the law society serve? Whose interests should and does it serve?
The Law Society of B.C. is a regulating body of the legal profession. Its mandate is to the public and not its own lawyers. It acts to ensure that the public is well served by the province’s legal professionals. Like regulatory bodies for other professions, it does so by maintaining standards of practice. Some of its functions include:
- deciding on whether to accredit a law school;
- establishing bar admission requirements for law school graduates such as the bar exam; and
- creating a code of ethics for practicing lawyers.
The law society also investigates complaints and takes disciplinary actions against lawyers. Its decisions are publicly reported on its website. Recent decisions include:
- a two-week suspension for a lawyer’s discourteous remarks against a social worker;
- a 30-day suspension of a lawyer for improperly commissioning affidavits and then misrepresenting to the court about them (failed to comply with his duty as an officer of the court);
- disbarment of a lawyer who stole his client’s money;
- disbarment of a lawyer who falsified invoices for services rendered; and
- court order prohibiting a non-lawyer from further offering legal services and advice.
An important aspect of law societies is that it’s self-regulating. Most of the benchers are lawyers elected by lawyers (although there are up to six non-lawyer benchers appointed by the government). What is the reason? According to the law society website:
People sometimes question the wisdom of lawyers being self-governing, wondering whether self-regulating bodies can be entirely objective. However, self-regulation actually protects the public’s right to independent lawyers. A lawyer’s role is to provide advice on behalf of a client, often in disputes involving the government or based on laws created by the government. A lawyer’s role would be difficult, if not impossible, if the organization that regulated lawyers was directly or indirectly controlled by the government. As one writer has said:
“It is imperative that the public have a perception of the legal profession as entirely separate from and independent of the government, otherwise it will not have the confidence that lawyers can truly represent [the public] in its dealings with government.”
Therefore, the Law Society is independent of the government. It is not a government authority and is not part of the public sector. It is not subject to instructions from government, nor does it receive any public funding.
The website adds this about the independence of the legal profession from government:
“Lawyer independence” is a public right that protects the rule of law. It is not a lawyer’s right – rather, it is a fundamental right that the public has to be able to obtain legal advice from a lawyer whose duty is to the client, not to any other person and certainly not to the state. It guarantees that a client can be confident that his or her lawyer provides legal assistance without fear of interference or sanction by the government or other interests.
What’s the counter argument? Considering lawyers have long had a public relations disaster on its hands, it’s understandably tempting to mistrust a self-regulating law society. In a recent exposé, the Toronto Star concluded that the Law Society of Upper Canada in Ontario, after catching and disciplining lawyers for stealing from their clients, rarely reports such instances to the police. I can imagine the reactions: They say they look for the public interest but they’re just looking after their own!…They’re maintaining a monopoly over legal services!…They’re a bunch of out of touch elitists!
Is a governmental body a better alternative? The issue of self-regulation is the subject of academic papers and policy debates in many jurisdictions. For now, the law society must take public mistrust seriously. What are your thoughts? Could you trust your lawyer to do a good enough job, whether it’s to take on the Crown, a government body, or another individual, if the lawyer is being watched over by the government? Conversely, has self-regulation resulted in a lack of accountability of lawyers?
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.