The looming crisis in lawyer self-regulation

Lawyers are losing public confidence. Our professional autonomy is at risk. We need to safeguard our independence to challenge the state, defend the rule of law and govern our own affairs — if we can.

Around the world, the tradition of lawyers regulating their own profession autonomously and independently is starting to waver. Over the course of the coming decade, I expect that “lawyer self-regulation” will be significantly altered and diminished, changing how the legal sector operates and how legal services are regulated. If lawyers aren’t careful in how we respond to these developments, we might lose in reality what we only believe we’re losing now: our professional independence.

Some examples from the early stages of this movement:

• In British Columbia, Canada, the provincial government will introduce next spring legislation to create a new single regulator of all legal services in the province. This new regulator’s board would include directors both elected from the ranks of regulated professionals and appointed by the government, in sharp contrast to the current model at the Law Society of B.C., where the vast majority of directors are lawyers elected by other lawyers. The law society and the Canadian Bar Association have come out in strong opposition to this governance structure, citing a need to protect lawyer independence.

• In Scotland, the government has proposed (and has since begun to back away from) significant reforms to the regulation of legal services. In particular, the changes would allow the government to review the performance (and potentially intervene in the operation of) regulators, a role currently occupied by the country’s top judge. Every legal organization in Scotland reacted furiously to the proposed changes, calling them a threat to lawyer and judicial independence, and the government has said it will re-examine the proposals.

• In the Netherlands, the government intends to replace the current legal regulation system (whereby the legal profession is supervised by 11 lawyer-administrators of local Bars) with an independent national regulator. The new regulator will be independent of both the government and (notably) the practicing bar, and its five-member board will be chaired and majority-constituted by people who are not lawyers. When I attended the International Conference of Legal Regulators meeting in Dublin earlier this fall, the head of the current Dutch legal regulator called the move a direct threat to, you guessed it, lawyer independence.

Lest my American readers think this is Something Happening to Other People, I’d draw your attention to the intervention of the California legislature last year in the operation of the independent State Bar. When a state bar task force appeared likely to recommend a pilot project allowing the licensure of paraprofessionals, a powerful lawyers’ lobby, on openly protectionist grounds, encouraged state lawmakers to threaten the entire annual budget of the regulator unless the proposals were tanked. When the state bar inevitably obeyed, it was clear that lawyer self-regulation in the US’s largest state extends only as far as legislators (and their deep-pocketed enablers) are willing to tolerate.

I predict that we’ll see more states, provinces, and countries move in this direction in 2024 and beyond. Governments will seek more input into and influence over the regulation of legal services and the governance of lawyers. They might do it politely or they might do it forcefully. But they’re not going to stop just because we wave the flag of “self-regulation” at them.

It looks to me as if lawyer self-regulation is approaching a crisis moment, and there’s a possibility it might fall away completely. As legal professionals, we have to come to grips with this trend and decide which of the upcoming battles on this field we’re willing to fight — and which we’re likely to win.

Self-regulation is not, despite what some lawyers seem to believe, an inherent right arising from our special status in society. “Lawyer self-regulation” is a term of art that describes a limited grant of autonomy from a branch of government (either legislative or judicial) to the legal profession to direct its own affairs, including the training, licensure, conduct, competence, and discipline of lawyers. (For a deeper dive into the history and meaning of lawyer self-regulation, see the works of Jayne Reardon, Stephen Mayson, and John Pearson.)

We possess this extraordinary privilege at the pleasure of government, in exchange for the promise to deploy it in the public interest. Governments can modify that privilege if and as the spirit moves them — as it did 15-20 years ago in England & Wales and Australia. There, self-regulation was taken away from the legal professions because of concerns about regulatory protectionism and anti-competitive activity, including regulators’ failure to address complaints against lawyers in a timely and serious fashion. Governments instead created independent oversight agencies to assess the work of regulators against statutory mandates to promote the public interest.

If self-regulation could be lost over a defective complaints-handling process 20 years ago, what should we expect today, when lawyers oversee — with rote expressions of sorrow but few actions and no solutions — a broken civil justice system that excludes more than 85% of the population? And with more governments shifting in an angrily populist direction, reflecting the mood of a public increasingly resentful of elite institutions whose benefits seem to extend only to their own members?

Because here’s the thing: “Lawyer self-regulation” isn’t really, or only, about the ability of lawyers to govern their own affairs. It’s also about lawyers’ ability to regulate the entire market for legal services, and to restrict participation in that market to themselves — as the paraprofessional fiasco in California ably demonstrated, and most other legal regulators in the US and Canada regularly demonstrate through “unauthorized practice of law” enforcement. (For more about our failures in this regard, see Anita Anand, Julie Macfarlane, and Laura Snyder.)

We were granted self-regulation on the condition that we exercise it in the public interest. Instead, we’ve exercised it by telling the public: “You may participate in the civil justice system by hiring a lawyer. If you can’t afford to hire a lawyer, then you are entitled to nothing. No assistance, no guidance — and we will prosecute any non-lawyer who tries to help you.”

Considering all that, the interventionist trend in legal regulation shouldn’t come as any surprise to us. The only surprise should be that it’s taken this long. If lawyers can’t make the legal system work for the public, others will step in and do it for us. And the price we pay for that could be higher than we think.

I’m not that interested in debating whether the interventionist wave is good, bad, or indifferent. I take the same view as I would an approaching tidal wave: It’s on its way, and it’s going to scour the landscape when it gets here. So you’d better prepare right now, by nailing down everything that really matters to you and preparing yourself to see the rest of it washed away.

So my question to the profession’s leaders is this: What’s really important to us? What can we afford to lose, and what should we sacrifice everything in order to defend?

From my perspective, we should answer that question by surveying all the aspects of the legal system under the profession’s regulatory jurisdiction and decide what we can afford to give up, what we should strive to maintain influence over, and what we absolutely can’t surrender.

1. What We Can Lose: Take this opportunity to get the legal profession out of the business of regulating the legal services market. Turn that job over to a specialized agency or independent regulator with a diverse, empowered, and independent board that includes (but is not controlled by) lawyers and judges. Let that entity develop and oversee standards of minimum competence for all legal providers, while working to develop new avenues of access to legal solutions of all kinds. Let it monitor and pursue charlatans seeking to exploit the public, without incurring the accusations of conflict of interest that have long dogged lawyer-controlled regulators. Lawyers have no business regulating non-lawyers. Full stop.

2. What We Should Negotiate: The standards and procedures for lawyer formation, licensing, ongoing competence, and discipline. As I’ve frequently written and advised, the legal profession needs to show the public (and its elected representatives) a valid and defensible procedural framework that leaves onlookers fully confident in lawyers’ skilled proficiency and ethical propriety. If we can build such a framework (and it seems we’re finally moving in that direction), we will be better positioned to fend off demands for public oversight of our own professional governance. But if we continue to insist that “a law degree, the bar exam, and 10 hours of CLE a year are fine,” then we should expect to lose power here, too. As for lawyer complaints and discipline, that would be best structured as a shared responsibility between the profession and an independent oversight body.

3. What We Must Retain: Our actionable independence from the state. This is where things get tricky, because too many lawyers (and regulatory leaders) conflate self-governance with independence. As the examples at the top of this article illustrate, even relatively minor proposals to reform legal regulation are met with grave warnings against the dangers of compromising lawyer independence. We need to clearly distinguish between proposals that represent the reasonable pursuit of the public interest in legal services, and those that represent legitimate and serious threats to the rule of law.

I want to be very clear here. The ability of the legal profession to remain independent from state control is extremely important. I italicize the modifier because some people who argue for “lawyer independence” don’t specify exactly what the profession is supposed to be independent of or from. Lawyers have no right to be independent of market forces or social norms. We’re part of society, not above it; we defend the rule of law, not the rule of lawyers.

But the spectre of state control of, or undue influence over, the legal profession is very real and stark. A government with authoritarian impulses — and there are plenty of examples all over the world, even here in the United States and Canada — understands that lawyers are specifically equipped and authorized to challenge arbitrary or unconstitutional acts of the state, and thus represent a significant obstacle to achieving authoritarian goals. Direct control over the legal profession would be a weapon powerful enough to tempt even moderate democratic governments; authoritarian regimes would not hesitate to use it.

Claims that lawyer independence is needed to protect society from malevolent state actors might have seemed overblown just ten years ago. They don’t anymore. The legal profession is right to vigorously defend its independence from the government.

But it’s not an attack on lawyers’ independence to propose that regulatory bodies should be directed by a balanced mix of lawyers and laypeople, rather than a super-majority of lawyers chosen by other lawyers. Or to suggest that complaints about lawyers should be handled by a standalone entity separate from a regulator or bar group dominated by lawyers. Or to try to improve the transparency and accountability of legal regulators in ways that advance the public interest and revive fading public confidence in the legal system.

We need to be more proportionate in defence of our independence. We need to distinguish between state intervention to reform a broken civil justice system, and state intervention to obstruct civil liberties and hinder the rule of law. We need to understand that crying wolf when there are few if any real wolves in the area will cost us when an actual wolfpack approaches.

Look around. You can see as clearly as I do that we’re entering dark and turbulent times. (More from me on this topic next week.) The old social contracts have been torn up and new ones are being drafted. It’s imperative that lawyers take part in drafting the provisions that apply to us, the public, and the rule of law.

Now is not the time to overreach. If we insist on total autonomy over our own affairs, and extend that autonomy to the oversight and operation of a legal system that serves hardly anyone’s interests but our own, we invite an antagonistic overreaction in return. If we keep seeing a crisis of independence in every pushback from government, we’ll spawn such a crisis for real.

We need to focus on the essentials. Lawyers should do everything necessary to ensure we can defend the rule of law by retaining our independence to act against the state and its agents. We should present governments with defensible and transparent systems of self-governance that justify the public trust of limited professional autonomy. And we should offer up almost everything else to someone else’s ambit.

Things are about to get real out there. The legal profession needs to do the same.